^^^% 



A''^ 
^ ^ 




. %'^'^\&* \-'f^.\<v* ^V^^^^o** V-- 




















f\ '-ym'y-^^ ''^^/ J'\ '-ym' ** ** '-.^ 




.0 .•IV'- > V 







>0 

5^ 







^9^ 









•^•\V^' %'^^!t^'/ V*^-\^^' %'^^*^o'5 















••0 










^o 












'^^\/ ^^^'^^'^o^ %.*^-\/ "V^^*^*^^ 






vv 






•.^ 







• ■« 











• " * 4 *^ . 







«5^ 












•^ ^-^c.^'^ -^^ 



Digitized by the Internet Archive 
in 2010 with funding from 
The Library of Congress 



http://www.archive.org/details/costaricapanamaaOOande 



L yf ^ ii ■ fc tf - C i * ■ i 



«» 



Costa Rica-Panama Arbitration 



SYNOPSIS OF CASE AND ARGUMENT 
FOR COSTA RICA IN REPLY 



BY 



V 



CHANDLER P. ANDERSON 



WASHINGTON, D. C. 

PRESS OF GIBSON BROTHERS, INC. 

1914. 



SYNOPSIS OF THE CASE 

OP 

COSTA RICA. 



THE QUESTION SUBMITTED. 

The treaty of March 17, 19 10, between Costa Rica and 
Panama, under which this arbitration is held, submits for 
the decision of the Honorable Arbitrator the following 
question : 

What is the boundary between Costa Rica and 
Panama under and most in accordance with the cor- 
rect interpretation and true intention of the Award 
of the President of the French Republic made the 
nth of September, 1900? 

In Article I of the treaty it is recited that the High Con- 
tracting Parties consider that the boundary between their 
respective territories designated by this Award "is clear 
and indisputable in the region of the Pacific from Punta 
Burica to a point beyond Cerro Pando on the Central 
Cordillera near the ninth degree of north latitude," and no 
question, therefore, with respect to this portion of the line 
is raised in this arbitration. 

It is further recited in Article I of the treaty that the 
High Contracting Parties "have not been able to reach an 
agreement in respect to the interpretation which ought to 
be given to the Arbitral Award as to the rest of the bound- 
ary line;" and under the terms of submission, therefore, the 
Honorable Arbitrator is called upon to determine where 
this portion of the boundary line should be located "under 
and most in accordance with the correct interpretation and 

(XV) 



XVI 

true intention of the Award of the President of the French 
Repubhc made the nth of September, 1900." 

The terms of the Award, so far as they relate to the 
portion of the boundary in dispute, are as follows : 

The frontier between the Republics of Colombia 
and Costa Rica shall be formed by the spur (counter- 
fort) of the Cordillera which starts from Cape Mona, 
on the Atlantic Ocean, and closes on the north the 
valley of the River Tarire or River Sixaola ; thence by 
the chain of the watershed between the Atlantic and 
Pacific to about the ninth parallel of latitude. 

The same Article of the treaty which formulates the 
question submitted to arbitration further provides that — 

In order to decide this the Arbitrator will take into 
account all the facts, circumstances, and considera- 
tions which may have a bearing upon the case, as well 
as the limitation of the Loubet Award expressed in the 
letter of His Excellency Monsieur Delcasse, Minister 
of Foreign Relations of France, to His Excellency 
Sefior Peralta, Minister of Costa Rica in Paris, of 
November 23, 1900, that this boundary line must be 
drawn within the confines of the territory in dispute 
as determined by the Convention of Paris between the 
Republic of Costa Rica and the Republic of Colombia 
of January 20, 1886. 

THE TRUE INTENTION OF THE LOUBET 
AWARD. 

The letter of Minister Delcasse of November 23, 1900, 
to which reference is made in the above quotation, was 
written in reply to a request from Senor Peralta for a more 
precise definition of the location of the line under the 
Award, in view of the fact that unless the Award was inter- 
preted to mean that the line should follow the Yorquin 
instead of the Tarire River, it would include within the 



XVll 

region granted to Colombia territory not in dispute, which 
would be a positive violation of the terms of submission, and 
therefore could not have been the intention of the Presi- 
dent of the French Republic. Minister Delcasse, speak- 
ing on behalf of the President of the French Republic, and 
recognizing the limitations which had been imposed upon 
him by the terms of the arbitration, explained that owing 
to the lack of precise geographical data the Arbitrator had 
not been able to fix the frontier except by means of general 
indications. He also admitted that there was no doubt, as 
Seiior Peralta had observed, "that in conformity with the 
terms of Articles 2 and 3 of the Convention of Paris of 
January 20, 1886, this frontier line must be traced within 
the limits of the territory in dispute, as they are found to 
be from the text of said Articles." He therefore pointed 
out in conclusion that — 

It is according to these principles that the Republics 
of Colombia and Costa Rica will have to proceed to 
the material determination of their frontiers, and the 
Arbitrator relies, in this particular, upon the spirit of 
conciliation and good understanding which has up to 
this time inspired the two interested governments. 

This letter was clearly intended to open a way for the 
two governments by mutual agreement, in a spirit of con- 
ciliation and good understanding, to revise and correct the 
Award if it should be found that it exceeded the limits 
imposed by the terms of submission ; and the statement in 
this letter that the Arbitrator had not been able to fix the 
frontier except by means of general indications, certainly 
introduces an element of uncertainty which gives a wide 
scope in interpreting the meaning of the Award. 

Articles 2 and 3 of the Convention of Paris of January 
20, 1886, which are referred to as imposing limitations upon 



XVlll 

the Award, and which were confirmed and ratified by the 
treaty of 1896 under which the Award was made, are as 
follows : 

Article 2. The territorial boundary which the 
Republic of Costa Rica claims, on the Atlantic side, 
reaches as far as the Island of the Kscudo de Veragua 
and the River Chiriqui (Calobebora) inclusive; and 
on the Pacific side as far as the River Chiriqui Viejo, 
inclusive, to the east of Punta Burica. The terri- 
torial boundary which the United States of Colombia 
claims reaches, on the Atlantic side, as far as Cape 
Gracias a Dios, inclusive; and on the Pacific side, as 
far as the mouth of the River Golfito, in the Gulf of 
Dulce. 

Article 3. The Arbitral Awardmust be confined to 
the territory disputed which lies within the extreme 
limits already stated, and it cannot in any way affect 
the rights which a third party, who has not intervened 
in the arbitration, may allege to the ownership of the 
territory included within the boundaries indicated. 

It will be observed that Article 2 merely fixes the ter- 
minal points upon the Atlantic and Pacific of the boundary 
claimed by the respective parties, while Article 3 imposes 
an additional limitation which confines the Award to the 
disputed territory within these extreme limits. In other 
words, the scope of the Award was confined not merely to 
territory within the extreme limits stated in Article 2, but 
to territory within those limits which was actually in dis- 
pute in 1886, when that treaty was made. 

It therefore becomes evident at the outset that the Award 
must be interpreted so as not to extend the boundary 
beyond the territory which was actually in dispute between 
Costa Rica and Colombia at the time the treaty of 1886 
was entered into. 



XIX 

THE POWERS OF THE PRESENT ARBITRATOR. 

It is also evident that the present terms of submission 
contemplate the adoption of an entirely different line from 
that indicated in the Award in case the general indications, 
by means of which the Award describes the boundary, 
cannot be followed, either because they would carry the 
line beyond the limits of the disputed territory, or because 
the precise geographical data now before the arbitrator, 
the lack of which compelled the former arbitrator to con- 
fine himself to "general indications" in describing the 
boundary, prove that the geographical conditions do not 
support the assumptions upon which these general indi- 
cations were based. 

If for these reasons, or for any other reasons disclosed by 
the facts presented in this case, the Award is found to be 
defective, the present arbitrator is at liberty to interpret 
the Award in such a way as to fix the line in accordance 
with the merits of the question, disregarding any compli- 
cations growing out of imperfections in the Award, as it is 
not to be presumed that the Award of the President of the 
French Republic could have had any other intention than 
this. That this was the intention of the terms of sub- 
mission, is evident from the provision above quoted that 
in order to decide the question submitted "the arbitrator 
will take into account all the facts, circumstances, and 
considerations which may have a bearing upon the case, 
as well as the limits of the Loubet Award expressed in the 
letter of His Excellency Monsieur Delcasse' ' etc. 

THE LIMITS OF THE TERRITORY IN DISPUTE. 

In considering the question of what territory was in dis- 
pute between Colombia and Costa Rica antecedent to 
their Treaty of 1886 for the purpose of determining the 



XX 



limitation thereby imposed upon the scope of the Award, 
it is necessary to understand at the outset that this ques- 
tion relates to two entirely different sections of territory, 
each of which has a distinctly different historical and legal 
status. 

One of these sections consists of the portion of the so- 
called Mosquito Coast extending toward the south from 
Cape Gracias a Dios, which marked about the center of 
that coast, and the other of these sections comprises a 
strip of territory extending between the Pacific and 
Atlantic Oceans to the eastward of a hue running from the 
mouth of the River Golfito on the Pacific side to the mouth 
of the Sixaola River on the Atlantic. It will be observed 
that the extreme points of these two sections are those 
fixed in the treaty of 1886 as the extreme points of the 
boundary claimed by Colombia — i. e. Cape Gracias a Dios 
on the Atlantic side, and the mouth of the River Golfito 
on the Pacific side. The location of the line claimed by 
Colombia between these two points was not described in 
terms in that treaty, but all uncertainty as to its location 
was removed by the supplemental provision of that treaty 
limiting the scope of the Award to the territory then in 
dispute between the two governments. The evidence 
produced on behalf of Costa Rica in this case shows that 
up to that time Colombia had never asserted a claim 
against Costa Rica for any territory beyond the limits of 
the two sections above described, and as a matter of fact 
Colombia had never formally asserted a claim against 
Costa Rica for the possession of any territory on the 
Atlantic coast beyond the mouth of the Sixaola River. 
Costa Rica certainly did not understand that any such 
claim was outstanding at that time or in any way involved 
in the issues presented by that treaty. Furthermore when 



XXI 

the President of France was asked and agreed to act as arbi- 
trator under the treaty of 1896, he was furnished by Costa 
Rica with a map on which was marked a hne showing 
that no territory to the northward of the mouth of the 
Sixaola River was regarded as in dispute at that time. 
This map and the letter of June 9, 1897, with which it 
was transmitted, from Sefior Peralta to the French Minis- 
ter of Foreign Affairs, were made part of the Case of Costa 
Rica in that arbitration and were acquiesced in without 
question by Colombia. 

THE MOSQUITO COAST. 

The reason that Cape Gracias a Dios was inserted in this 
treaty by Colombia as the extreme point of the boundary 
claimed by it on the Atlantic Coast was unquestionably 
iDecause of the desire of that Government not to prejudice or 
relinquish by implication the possibility of establishing in 
the future a claim to that part of the Nicaraguan coast 
adjacent to the mouth of the San Juan River on the ground 
that it was part of the Mosquito coast ; for Colombia was 
very anxious if possible to secure or at least participate in 
the control of the Atlantic end of the proposed Nicaraguan 
Canal in addition to the control it then exercised over the 
Panama Canal route. On the other hand Costa Rica per- 
mitted Cape Gracias a Dios to be named as the ex- 
treme point of the boundary claimed by Colombia for 
several reasons, the most important of which were : first, 
because the point thus named was not in Costa Rican 
territory, and therefore was outside of the scope of 
the arbitration under this treaty, which expressly pro- 
vided that the rights of third parties could not in any 
way be affected, and in the second place because it was 
well understood that the boundary claimed by Colombia 



XXll 



as far as Cape Gracias a Dios related only to the so-called 
Mosquito Coast which had never comprised any of the 
territory of Costa Rica, being limited, as is conclusively 
shown by the evidence presented in this case, to a portion^ 
of the Atlantic littoral of Nicaragua north of Punta Gorda, 
which is more than ten leagues above the San Juan 
River. Moreover, Colombia's claim to the Mosquito 
Coast was known to be without valid legal basis, and 
as is stated above, Colombia had never raised as a 
distinct issue with Costa Rica, by formal assertion or 
demand, any claim to any portion of Costa Rican terri- 
tory, northward of the Sixaola River, — certainly no such 
claim was at issue between them in 1886; consequently, 
even if the Mosquito Coast was regarded as including any 
part of the Atlantic littoral of Costa Rica, it was not 
strictly speaking territory in dispute between the two 
countries within the meaning of the treaty of 1886. 

The basis of Colombia's pretensions to a part of the 
so-called Mosquito Coast was a Royal Order of 1803 which 
provided that "the part of the Mosquito Coast from Cape 
Gracias a Dios, inclusive, toward the River Chagres, shall 
be segregated from the Captaincy-General of Guatemala, 
and be dependent on the Viceroyalty of Santa Fe." 
Colombia claimed to be entitled to possession as the suc- 
cessor to the Viceroyalty of Santa Fe. It will be found, 
however, from an examination of the arguments and 
evidence submitted in the case for Costa Rica, that 
this order never had the effect claimed for it by Co- 
lombia, having been adopted for military and not gov- 
ernmental purposes, and the occasion for it having soon 
thereafter ceased, it never became operative and was 
always afterwards disregarded, and in any event was 
superseded and abrogated by a Royal Order of 1806, which 



XXlll 

retained the Mosquito Coast under the dependency of 
Guatemala. 

In this connection attention is called to the very able and 
valuable opinion of the learned Spanish jurists, Sefior Don 
Segismundo Moret y Prendergast and Sefior Don 
Vicente Santamaria de Paredes, who have examined the 
question of the boundary between Costa Rica and Panama 
with reference to the Spanish Colonial law, at the request 
of the Government of Costa Rica, which opinion is now 
presented as part of the Case of Costa Rica. 

It is further shown that the lower end of the Mosquito 
Coast never extended as far as the northern border of 
Costa Rica, and that Cape Gracias a Dios was about mid- 
way between the upper and lower extremities of that 
coast. It is also shown that the use of the words "toward 
the River Chagres" in the Order was not intended to and 
did not in fact extend the Mosquito Coast along the 
Atlantic httoral to that river, because the word "toward," 
as used in that Order, did not mean "as far as," but was 
merely intended to signify direction, as if that Order had 
read ' 'that part of the Mosquito Coast below Cape Gracias 
a Dios," in distinction from the part above that point. 

THE LAW APPLICABLE. 

It is also proved in this case that Colombia had neither 
actual nor constructive possession of any part of the Mos- 
quito Coast during its colonial period, or after its inde- 
pendence from Spain was established, so that the principle 
of uti possidetis universally adopted in South and Central 
America for the determination of boundaries could not be 
invoked by Colombia with reference to the Mosquita 
Coast. Colombia's claim to that coast rested wholly 
upon the Order of 1803, and for that reason Colombia 



XXIV 

sought to modify the principle of uti possidetis by adding 
the words "de jure," so as to bring within its apphcation a 
mere claim of right to possession in distinction from a claim 
based upon actual possession. Even under this modifica- 
tion of the uti possidetis principle, however, proof of the 
validity and continuance of the Order of 1 803 down to and 
after Colombia's separation from Spain was essential to 
establish even a prima facie claim by Colombia to the 
Mosquito Coast. 

Under these circumstances it is incredible that Colombia 
could ever have hoped to sustain this claim to the Mos- 
quito Coast. Even if the Order of 1803 had not been 
revoked in 1806 it was always subject to revocation and it 
stands to reason that when Colombia achieved her inde- 
pendence after revolting from Spain in 18 10, she ceased to 
have any further claim on the Mosquito Coast under the 
Order of 1803, for a revocable order, such as that was, 
could not under any principle of law be regarded as there- 
after continuing in force for the purpose of transferring to a 
revolting colony territory situated in a loyal colony, and 
actually in the possession and control of Spain. 

FAILURE OF COLOMBIA'S CLAIM. 

It follows as a necessary conclusion from the evidence 
produced on behalf of Costa Rica that Colombia's claim of 
right to possession of the Mosquito Coast furnished no 
justification for extending the Colombian boundary to the 
north of the Sixaola River, even if the Royal Order of 1 803 
could be construed as carrying the Mosquito Coast south 
of the Nicaraguan boundary and along the Costa Rican 
littoral on the Atlantic. That President Loubet reached 
this conclusion is shown by the Award itself, which in 
express terms decides that the territory of Colombia 



XXV 

(Panama) shall not extend beyond Punta Mona on the 
Atlantic Coast, and that islands in proximity to the coast 
"situated to the west and to the northwest of the said 
Punta Mona shall belong to the Republic of Costa Rica." 
The Award also in express terms refers to other islands 
"more distant from the continent and included between 
the Coast of the Mosquitos and the Coast of the Isthmus 
of Panama." 

It is evident, therefore, that it was the intention of 
President Loubet in this Award to decide that Costa Rican 
territory intervened along the Atlantic littoral between 
the Mosquito Coast and Panama, thus denying Colombia's 
claim that the Mosquito Coast extended south of the San 
Juan River or intervened between Costa Rica and the sea 
along any part of the littoral south of the Nicaraguan 
boundary. 

It is also clear from the foregoing that in denying this 
claim President Loubet at the same time deprived himself 
of any ground which would justify starting the Atlantic 
end of. the boundary at Punta Mona instead of at the 
mouth of the Sixaola River, for as above stated, apart 
from the Mosquito Coast claim, the utmost limit of the 
boundary for which Colombia had contended in the pro- 
ceedings resulting in the arbitration treaty was the mouth 
of the Sixaola River. 

THE ONLY TERRITORY ACTUALLY IN DISPUTE. 

It remains to consider the course of the line claimed by 
Colombia, prior to the treaty of 1886, from the mouth of 
the River Golfito on the Pacific side to the mouth of the 
River Sixaola on the Atlantic, bounding on the westward 
the other section above mentioned, within which was com- 
prised the territory in dispute between the two Govern- 



XXVI 

ments at that time, and beyond which line, under the 
terms of the treaty the boundary can not be extended into 
Costa Rican territory. 

In view of the character of the boundary of the Loubet 
Award and the acceptance by both Governments of that 
portion of it lying on the Pacific side of the Main Cor- 
dillera, it is necessary to consider in this connection only 
that portion of the territory in dispute lying between the 
Main Cordillera and the Atlantic Coast. Costa Rica 
admits that all the territory lying to the southeastward of 
the Sixaola River for its entire length from its mouth to its 
junction with the Yorquin River, and to the eastward of 
the Yorquin River from its mouth to its source was ter- 
ritory in dispute at the time the treaty of 1886 was made 
and within the meaning of Article 3 of that treaty. 

Costa Rica denies that any territory to the westward of 
the Yorquin or to the northward of the Sixaola River was 
ever claimed by Colombia prior to 1886, or was in dispute 
between the two Governments at the time the treaty of 
1886 was entered into or prior to the arbitration treaty 
under which the Loubet Award was made. It will be 
found that this denial is completely sustained by the proofs 
and arguments presented on behalf of Costa Rica. 

THE BOUNDARY UNDER COLONIAL AND 
INTERNATIONAL LAW. 

A boundary existed between Costa Rica and Panama 
while they were still Spanish provinces for several years 
after Colombia had declared her independence of Spain, 
and subsequently, in the latter part of 1821, when they in 
turn declared their independence the demarcation of the 
boundary between them as independent states first became 
an international question, with which question Colombia 



XXVll 

was not concerned until the following year . In this connec- 
tion it should be noted that the demarcation of the bound- 
ary between Costa Rica and Panama presents a distinctly 
different question from that raised by Colombia's claim to 
the Mosquito coast. The determination of the boundary 
between Costa Rica and Panama upon their independence 
was governed then, as it has been ever since, by the prin- 
ciple of uti possidetis in 1821, and after Panama had joined 
the Republic of Colombia and Costa Rica had joined the 
United Provinces of the Centre of America, this principle 
was recognized as applicable to that boundary in the 
treaty entered into in 1825 by those Powers. By this 
treaty they guaranteed in Article 5 — 

the integrity of their respective territories against the 
attempts and incursions of the subjects of the King of 
Spain and their adherents, on the same footing in 
which they were found naturally before the present 
War of Independence. 

And they agreed in Article 7 — 

to respect their limits as they are at present, reserving 
the making, in a friendly manner, by means of a 
Special Convention, of the demarcation by a line 
dividing one State from the other, as soon as circum- 
stances may permit it, or when one of the parties 
manifests to the other a desire to take up this nego- 
tiation. 

The boundary line claimed by Costa Rica at that time, 
and ever since, as representing the real divisional line 
between Panama and Costa Rica as provinces and between 
the territories actually possessed by them respectively at 
the time of their declaration of independence in 1821, was 
formed, on the Atlantic side of the Main Cordillera, by the 
Chiriqui or Calobebora River, which empties into the sea 



XXVlll 

at a point opposite the Kscudo de Veragua. The justice 
of this contention is fully sustained by the above-mentioned 
opinion of Seiiores Moret and de Paredes, who have 
examined the question with reference to Spanish Colonial 
law. 

This line left on the Costa Rican side of the boundary 
the entire region known as Bocas del Toro, including the 
bay of that name comprising the Chiriqui Lagoon and the 
Bay of Almirante, which, as a glance at the map will show, 
afforded splendid harbor facilities, of immense value even 
then on account of the scarcity of spacious harbors in that 
vicinity, and of much greater value in later years in rela- 
tion to the Panama Canal. 

JURISDICTIONAL CONFLICT. 

Costa Rica was left in undisturbed and unquestioned 
possession of all the region to the west of the Chiriqui or 
Calobebora River, above mentioned, until 1836, when the 
Congress of New Granada (successor of the Republic of 
Colombia) decreed the occupation of Bocas del Toro, 
which was described in that decree as extending along the 
Atlantic coast as far as the "Culebras" River. There 
was no river in that region to which the name "Culebras" 
properly applied in those days, but the river intended in 
this decree has been demonstrated to be the river called 
Changuinola on modern maps. 

In the following year New Granada adopted another 
decree organizing a new canton in this Bocas del Toro 
region, thus demonstrating that it had not been in the 
possession of New Granada up to that time. These 
decrees have always been regarded by Costa Rica as an 
unlawful encroachment upon Costa Rican territory, the 
usurpation of which was a violation of the above quoted 
stipulations of the treaty of 1825. 



XXIX 

TREATY OF 1841. 

While this question was still in the stage of dip- 
lomatic discussion, the Federation of Central America 
dissolved, Costa Rica resuming its independent existence 
as a separate state (1838), and shortly thereafter Panama 
separated from New Granada, becoming the Republic of 
the Isthmus (1840). These two independent states there- 
upon entered into a treaty, in 1841, of mutual recognition 
and friendship, by which it was agreed that — 

The state of Costa Rica reserves its right to claim 
from the state of the Isthmus the possession of Boca- 
toro upon the Atlantic Ocean, which the Government 
of New Granada had occupied, going beyond the 
division line located at the Escudo de Veraguas. 

Before these two states could reach an agreement on the 
adjustment of their boundary, as contemplated in this 
treaty, Panama was again absorbed by New Granada, 
and the boundary question was thereafter left in abeyance 
for upwards of fifteen years. 

NEO-GRANADIAN CONTENTIONS. 

Meanwhile, by way of preparation for the renewal of 
this discussion, the neo-Granadian Government secured 
two reports on the subject from Seiior Fernandez Madrid, 
an eminent statesman of that Republic, one made by him 
as a private individual in 1852, and the other prepared 
by him and adopted in 1855 by the neo-Granadian 
Senate of which he was a member. These two 
reports are substantially identical, and the conclusion 
reached in them is that the "Culebras" River marks the 
end of the boundary on the Atlantic, but that "as there 
cannot fail to be noted in one writer or another some dis- 



XXX 

crepancy concerning which of the points stated (Doraces, 
Culebras or Punta Careta) is the one which in reaHty does 
separate the two jurisdictions," it wih be admissible for 
the two governments to deviate from the strictly legal 
line, and for their accommodation to take another which, 
without departing in any substantial way from the bound- 
aries indicated, might harmonize more nearly with what 
was desirable for both countries. 

The real interest of New Granada in this boundary ques- 
tion at that time is disclosed by the statement found in 
these reports that it does not seem impossible to reach an 
agreement as above suggested "if we confine ourselves to 
securing our possession of Bocas del Toro and reserving 
to ourselves a good anchorage in the Gulf of Dulce, being 
thoroughly convinced that this being settled in a satis- 
factory manner, all the other points are of entirely sec- 
ondary interest." 

TREATY OF 1856. 

In the year 1855 New Granada opened negotiations 
with Costa Rica for the settlement of this boundary, and 
in the following year the Treaty of June 11, 1856, was 
negotiated fixing this portion of the boundary along the 
middle of the principal channel of the River Doraces from 
its source to its mouth in the Atlantic. In agreeing to 
this boundary it was understood on the part of Costa 
Rica that the Doraces River was the same as the old Bs- 
trella, which was called by some geographers the "Cule- 
bras," and is now known as the Changuinola on modern 
maps. This river, it will be remembered, was the same 
one which, under the name of the Culebras in New Gra- 
nada's usurpatory decree of 1836, had marked the western- 
most extreme on the Atlantic Coast of the Bocas del Toro 
territory, which at that time was the utmost limit of New 



XXXI 

Granada's pretensions. Not content, however, with the 
extreme concession thus made in this treaty, and at a 
time when Costa Rica was embarrassed by a foreign war 
and ravaged by cholera. New Granada sought to force 
even further concessions from that unhappy country by 
imposing an interpretation upon this treaty the effect of 
which would have been to identify the "Doraces" River 
with ' ' the first river which is found at^a short distance to 
the southeast of Punta Careta," meaning thereby the 
present Sixaola River. Costa Rica promptly refused to 
accept this interpretation, and rejected this treaty, which 
it is important to note never became effective. 

TREATY OF 1865, 

Upon the failure of the treaty of 1856 Costa Rica decided 
to regain possession of the region then in dispute, and in the 
year 1859 took steps providing for the control of the 
archipelago of Bocas del Toro, by the governor and com- 
mander of the Port of Moin, who was authorized to 
appoint military and police judges in that region, and to 
expel wrong doers, and exercised other acts of jurisdiction 
over that region. 

As a result of these proceedings, negotiations were 
undertaken in 1855 between Costa Rica and the Govern- 
ment of the United States of Colombia, then recently es- 
tablished, for the settlement of this question, and on 
March 30 of that year a treaty was signed by which 
the boundary of the territory now under consideration 
was fixed along the main channel of the Canaveral 
River from its source to its mouth on the Atlantic. 
The boundary thus fixed by this treaty was not 
quite so favorable to Costa Rica as the boundary 
originally claimed by that country, but it included within 



XXXll 

the jurisdiction of Costa Rica the entire Bocas del Toro 
region which New Granada had sought to obtain under the 
Treaty of 1856. This boundary has always been recog- 
nized as conforming most nearly, both legally and his- 
torically to the true boundary, having reference to the 
principle of uti possidetis in 1821 which is controlling in 
this case. It is worthy of note that the treaty adopting 
this boundary was approved by the executive power and 
by the Senate of Colombia, and also on the first reading 
by the Colombian House of Representatives, and only 
failed of ratification because its final approval, after a 
second reading, was left to the legislature for the following 
year, which rejected it for reasons entirely unrelated to 
the boundary question. 

TREATY OF 1873. 

Following the failure to ratify the treaty of 1865, juris- 
dictional conflicts arose both on the Atlantic and the Pacific 
side of the territory in dispute, and an attempt was again 
made to agree upon a treaty settling the boundary, and a 
treaty for that purpose was finally negotiated in April 1873, 
by which the section of the boundary now under considera- 
tion was fixed along the course of the River Bananos from its 
source to its outlet in the Bay of Almirante. The line thus 
fixed was somewhat more favorable to Costa Rica than the 
line fixed by the Treaty of 1856 along the Doraces or Chan- 
guinola River, because the Bananos River lies to the east 
of that river and empties into Almirante Bay, a part of 
which was thus reserved to Costa Rica. It was much less 
favorable, however, to Costa Rica than the Treaty of 1865, 
and as it was not satisfactory to either country it failed of 
ratification. 



XXXI 11 

CONTENTIONS AS TO TERRITORIAL POSSES- 
SION PRIOR TO ARBITRATION. 
After the failure of this treaty, jurisdictional conflicts 
were renewed, and it became evident that a settlement of 
this boundary by agreement would be impossible, and that 
resort must be had to arbitration. In anticipation of 
arbitration, and by way of preparation for it, the Colom- 
bian Senate adopted on July 13, 1880 a series of conclu- 
sions relating to this boundary, only the first and third of 
which require examination on this point. The first of 
these conclusions was as follows: 

I. Colombia has, under titles emanating from the 
Spanish Government and the uti possidetis of 18 10, a 
perfect right of dominion to, and is in possession of, 
the territory which extends toward the north, be- 
tween the Atlantic and Pacific Oceans, to the following 
line: From the mouth of the River Culebras upon 
the Atlantic, going upstream to its source; thence a 
line along the crest of the range of Las Cruces to the 
origin of the River Golfito ; thence the natural course 
of the latter river to its outlet into the Gulf Dulce in 
the Pacific. 

Costa Rica has never admitted that the name Culebras 
could properly be applied to the Sixaola River. Con- 
temporaneous occurrences, however, enabled Colombia to 
claim that in using this name in the extract above quoted, 
it was intended to apply to the Sixaola River. Costa Rica 
has always contended, and it seems to have been admitted 
on the part of Colombia, that the Sixaola River proper 
extends from its outlet in the Atlantic only up to 
its junction with the Yorquin, and that from that point 
up Colombia intended the name Culebras to apply to the 
Yorquin River in distinction from the Tarire, which joins 
with the Yorquin and four other tributaries in making the 



XXXIV 

Sixaola. This construction is sustained by the third con- 
clusion, above mentioned, of the Colombian Senate, which 
is as follows: 

3. Colombia has been in the uninterrupted posses- 
sion of the territory embraced within the limits indi- 
cated in Conclusion i. 

This statement clearly identifies the Yorquin and not 
the Tarire as the upper part of the river to which the name 
Culebras is applied in the first Conclusion, because Co- 
lombia neither up to that time nor since, ever had any sort 
of possession of the territory to the westward of the 
Yorquin between it and the Tarire, the possession of which 
territory had been in the uninterrupted and unquestioned 
possession of Costa Rica for upwards of three hundred 
years. 

It will be found upon an examination of Costa Rica's 
case that all of the foregoing statements are fully sus- 
tained by the arguments and evidence therein presented, 
and it will be found further that until after 1870 Colombia 
had never exercised any jurisdiction over or even had 
constructive possession of any territory in this region west 
of the Changuinola River. This was the situation and 
the extent of Colombia's claims up to the year 1880, when 
the first treaty for the settlement of this question by 
arbitration was entered into, and no substantial change 
took place in the situation, and no attempt was made by 
Colombia to encroach further upon Costa Rican territory 
prior to the making of the second arbitration treaty, dated 
January 20, 1886, which contained in the Third Article 
the stipulation already quoted providing that the arbitral 
award must be confined to the disputed territory which 
lies within the extreme limits already stated. 



XXXV 



THE DISPUTED TERRITORY SUBMITTED TO 
ARBITRATION AND THE SILVELA LINE. 

Prior to the treaty of 1886 a status quo line resting chiefly 
upon actual possession had been established, and from that 
period down to the present time the entire region to the 
westward of the Yorquin and northward of the Sixaola 
Rivers has remained continuously in the possession of 
Costa Rica just as it always had been from the beginning 
of the Colonial period. There was, therefore, as a 
matter of fact no difference in the area of the territory in 
dispute from the date of the arbitration treaty in 1886 
down to the date of the Loubet Award, so that the stipula- 
tion above quoted from the treaty of 1886 had the same 
effect whether applied to conditions in 1886 or 1900. 
Nevertheless in another aspect this stipulation was of great 
importance and demonstrates the foresight which was 
shown in adopting it. It was intended to prevent any 
attempt on either side to bring into the litigation any claims 
or extend the scope of the arbitration over territory not in 
dispute at the time the arbitration was agreed upon. Such 
an attempt was made in presenting Colombia's case in the 
arbitration before President Loubet, when the representative 
of Colombia formally demanded on the part of his govern- 
ment a line, known as the Silvela line, starting several 
miles to the west of the River Golfito, which was fixed by 
the treaty of 1886 as the extreme limit of the boundary 
which could be claimed by Colombia, which line he carried 
from that point due north to its intersection with the Teliri 
or Tarire River and thence by a straight line slightly to 
the west of north until it reached the confluence of the 
Sarapiqui River with the San Juan River. 



XXXVl 

This so called Silvela line embraced a vast extent 
of territory which Colombia never before had claimed, 
and about which there had never been any dispute between 
the two countries. Clearly Colombia's claim was inad- 
missible and incompetent to subject that territory to 
the hazard of arbitration, and that claim, therefore, should 
have been wholly disregarded by the arbitrator except in 
so far as it operated to limit rather than extend the area 
of the territory now claimed. For that purpose it was com- 
petent evidence against Colombia as an admission against 
the interest of that government which would not have 
been made unless it was true. In this connection, there- 
fore, it should be noted that inasmuch as the Silvela line 
cuts across a part of the territory which Panama now 
claims as granted to it under the Loubet Award it is in 
effect an admission that the Award line included territory 
not in dispute. 

THE DEFECTS OF THE AWARD. 

With these considerations in mind, a glance at the map 
will show that the entire course of the Loubet Award 
boundary, from Punta Mona to a point near Cerro Pando 
on the Main Cordillera, lies beyond the Sixaola-Yorquin 
Rivers, and in fact even beyond the Sixaola-Tarire Rivers, 
and therefore for its entire length it runs through territory 
which was not in dispute, and was for that reason, excluded 
from the scope of that arbitration. 

In addition to the defects above discussed, the case 
presented by Costa Rica shows that the Award of President 
Loubet is also subject to revision and correction because 
the presentation of Costa Rica's case was prejudiced by 
inequality of treatment during the Arbitration proceedings, 
and that the Award is further defective on account of 



XXXVll 

uncertainty and ambiguity by reason of the vagueness of 
its terms, which are confined to general indications, and 
also by reason of the fact disclosed by the report of the 
Commission of Engineers that the geographical conditions 
along the course of the line, as interpreted by Panania, 
do not support the assumptions upon which these general 
indications were based. 

COSTA RICA'S CONTENTIONS. 

In conclusion, therefore, Costa Rica contends that the 
lyoubet Award must be interpreted in such a way as not 
to fix a line extending beyond even the most extravagant 
claim made by Colombia, but so as to confine the boundary 
within at least the limits of the territory actually in dis- 
pute as required by the terms of the treaty of 1886. 

Costa Rica further contends that, bearing in mind the 
principle oitdi possidetis in 1821 as controlling in this case, 
together with the right of prescription based upon contin- 
uous possession by Costa Rica and the entire absence of 
possession by Colombia or Panama at that time of any of 
the territory in dispute, or of any of the territory westward 
of the Changuinola River until very recent years, it 
would be more in accordance with justice and historical 
accuracy that a line approaching more nearly the line 
which both parties agreed to in their Treaty of 1865, or 
at least in their Treaty of 1873, should now be adopted 
as the boundary between them. It will be observed that 
the section of the Loubet Award line on the Pacific side 
of the Main Cordillera follows very closely the line adopted 
in those treaties. 




ARGUMENT 

FOR 

COSTA RICA IN REPLY 



(i) 



ARGUMENT FOR COSTA RICA IN REPLY. 



I. 

IN ORDER TO DECIDE THE QUESTION SUBMITTED TO ARBI- 
TRATION, THE TERMS OF SUBMISSION REQUIRE AN 
EXAMINATION INTO THE MERITS OF THE CONTROVERSY 
WHICH RESULTED IN THE LOUBET AWARD, IN ACCORD= 
ANCE WITH WHICH THE CORRECT INTERPRETATION AND 
TRUE INTENTION OF THAT AWARD MUST BE DETER= 
MINED. 



The Cases presented by Costa Rica and Panama in this 
arbitration disclose a fundamental and significant differ- 
ence between the two governments in their respective 
contentions as to whether or not the merits of the dispute 
submitted to President Loubet should be examined by the 
present Arbitrator in order to determine the question now 
submitted for his decision. 

This question is — 

"What is the boundary between Panama and Costa 
Rica under and most in accordance with the correct 
interpretation and true intention of the Award of the 
President of the French Republic made the nth of 
September, 1900."^ 

Costa Rica insists that the form of the question itself, 
which calls upon the Arbitrator to ascertain the correct 

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 704. 

(ni) 



lY 

interpretation and true intention of the Loubet Award, 
demonstrates the inherent necessity for examining into 
the merits of the controversy which resulted in that Award, 
and that this necessity is recognized by the terms of the 
treaty, which, after stating the question to be decided, 
expressly provides that "in order to decide this, the Arbi- 
trator will take into account all the facts, circumstances 
and considerations which may have a bearing upon the 
case."^ The words quoted would be meaningless under 
any other construction of the treaty, and that they have 
the meaning indicated is admitted by Panama in the 
statement in her Case that — 

"It would be impossible for the Arbitrator to ignore 
these things in interpreting the Award and determin- 
ing its ' true intention.' "^ 

Notwithstanding this admission the position of Panama 
on the question of examining into the merits of the contro- 
versy is stated in her Case as follows : 

"With the original question of boundaries, sub- 
mitted to President Loubet, we have, then, nothing 
to do. Upon this arbitration we do not know, and 
have no occasion to inquire, what were the merits of 
that controversy, what documents or other proofs 
were before President Loubet, nor what his reasons 
were for his decision."^ 

The theory upon which the Case of Panama is presented 
seems to be that the correct interpretation and true inten- 
tion of the Loubet Award can be ascertained by an exami- 

iDocuments annexed to the Argument of Costa Rica, vol. 2, p. 704. 
'^Argument of Panama, p. 3. 
HUd., p. 5- 



nation of the terms of that Award without inquiring into-' 
any of the antecedents or surroundings which influenced', 
that Award, but the Panama Case fails to explain why the 
parties to this arbitration, if that was their understanding, 
expressly provided in the treaty that in order to decide 
the question submitted, the present Arbitrator "will take 
into account all the facts, circumstances and considera- 
tions which may have a bearing upon the case."^ 

That this provision necessarily means an inquiry into 
the merits of the controversy is further shown by another 
provision immediately following it in the same clause of 
the treaty which requires the Arbitrator in order to decide 
the correct interpretation and true intention of the Loubet 
Award also to take into account the limitation of the 
Loubet Award 



"expressed in the letter of His Kxcellency Monsieur 
Delcasse, Minister of Foreign Relations of France, to 
His Excellency Sefior Peralta, Minister of Costa Rica 
in Paris, of November 23, 1900, that this boundary 
line must be drawn within the confines of the territory 
in dispute as determined by the Convention of Paris 
between the Republic of Costa Rica and the Republic 
of Colombia of January 20, 1886."^ 

These two provisions are given by the treaty precisely 
the same relation to the determination of "the boundary 
under and most in accordance with the correct interpre- 
tation and true intention of the Award." 

In other words if the Award boundary is not justified 
by reason of any of the facts, circumstances and consid- 
erations which may have a bearing upon the case, the 

^Documents annexed to the Argument of Costa Rica, vol. 2, p. 704. 



VI 

Award boundary must be reformed, just as it must be 
reformed if it extends into undisputed territory of Costa 
Rica. 

It is admitted in the Panama Case that — 

"if any part of the line fixed by President Loubet did, 
in fact, lie outside the limits fixed by the convention 
of 1886, that part would require modification and it 
would be necessary for the present Arbitrator to 
substitute for it such line as he should determine to 
be ' most in accordance with ' what he should find to 
be the 'true intention' of the Award. "^ 

Panama here admits that the Award must be modified 
if it exceeds the limitation fixed as one of the things which 
the present Arbitrator must take into account in determin- 
ing its correct interpretation and true intention. The 
same result necessarily must follow if the Award fails to 
conform to the other facts, circumstances and considera- 
tions which the Arbitrator is required by the treaty to take 
into account in determining the correct interpretation and 
true intention of the Award. 

The inherent weakness of Panama's contention on this 
point is illustrated by the admission in the above quoted 
extract to the effect that under certain circumstances the 
Arbitrator would have to substitute for the line of the 
Award "such line as he should determine to be 'most in 
accordance with' what he should find to be the true inten- 
tion of the Award." 

Here the contention of Panama completely breaks down, 
for how can the true intention of the Award be ascertained 
in the supposed case without an examination into the 
merits of the controversy? 

'lA.rgument of Panama, p. 10. 



VII 

This difficulty is well illustrated by Panama's interpre- 
tation of the meaning of the Award. The Panama Case 
states that — 

' ' The question before President I^oubet was the fixing 
of a boundary. For that purpose the only thing of 
importance was that there should be natural features 
of the country to define it, if such could be found. 
Intending to award to Colombia ever5rthing south of 
the north boundary of the watershed of the Sixola 
and east of the cordillera, the natural boundary was 
the divide to the north of the Sixola and that formed 
by the crest of the cordillera."^ 

Costa Rica has shown that this line throughout its 
entire length runs through the undisputed territory of 
Costa Rica. It is therefore necessary, in the words of the 
Panama Case, for the present Arbitrator to substitute for 
it such line as he should determine to be "most in accord- 
ance with " what he should find to be the "true intention " 
of the Award. According to Panama's case, ' ' for that pur- 
pose the only thing of importance was that there should be 
natural features of the country to define it, if such could 
be found." The Panama Case further states that "in 
accordance with the usual practice, at the present day, 
this boundary follows the summit of successive water- 
sheds."^ Presumably, therefore, Panama's interpretation 
of the Award would be, when the divide of the northern 
watershed of the Sixaola proved to be impossible, that the 
line should follow the summit of some divide within the 
disputed territory, but even so, it would be difficult, 
without going into the merits of the case, to determine 
whether that divide be the one nearest to the Sixaola river 
on the south, or the divide of the northern watershed of the 

^Argument of Panama, p. 23. 
''Ibid., p. 14. 



VIII 

Changuinola, or whether on the other hand, as contended 
by Costa Rica the boundary should not preferably follow 
the course of the Changuinola river. 

The same difficulty is found in dealing with the situation 
presented by the uncertainty, vagueness and ambiguity 
of the Award description of this boundary, which, as 
stated by Minister Delcasse,^ on behalf of President Loubet 
he had been unable to fix except by means of general indi- 
cations on account of the lack of exact geographical data, 
which general indications were based upon assumed geo- 
graphical conditions, differing radically from the actual 
conditions as reported by the Commission of Engineers. 
The Panama Case very properly admits as to this situation 
that— 

"if an ambiguity should appear, or if, because, in any 
part, the line cannot be drawn exactly as described 
in the Award, it becomes necessary for the present 
Arbitrator to determine the line ' most in accordance 
with' 'the true intention' of President Loubet, then, 
to resolve the ambiguity or to determine the 'true 
intention,' he must, necessarily, and even if the con- 
vention had not expressed it, 'take into account all 
the facts, circumstances and considerations which may 
have a bearing upon the case.' "" 

But the Panama Case then proceeds to contend that 
there is no uncertainty or ambiguity as to the intention of 
the Award because, although President Toubet was mis- 
taken about the existence of a mountain spur or counter- 
fort bounding on the north the valley of the Sixaola, which 
would have furnished a barrier forming a convenient inter- 
national boundary, there still remained the watershed on 
the north of the Sixaola, the northern limit of which, 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, Doc. 421, 
^Argument of Panama, p. 3. 



IX 

although not furnishing a barrier, was in the neighborhood 
of where President Loubet assumed the barrier to be, and 
therefore that the northern divide of this watershed must 
be assumed to be what President Loubet intended. 

According to Panama's contention, all that is required 
of the present Arbitrator is to record the existence of the 
undisputed fact that the Sixaola has a watershed on the 
north, and the further fact that the Commission of Engi- 
neers has been able to locate the northern limit of that 
watershed and to conclude from these facts that the line of 
the divide thus located was intended to be the boundary, 
without taking into account any of the many other facts, 
circumstances and considerations which have a bearing 
on the case. 

If this was all that was required of the Arbitrator by the 
terms of submission, it would be difficult to explain why 
the Parties did not call upon the Commission of Engineers 
to decide the question, instead of submitting it to a dis- 
tinguished jurist. 

The negotiations which resulted in the treaty of arbi- 
tration are significant and enlightening on this point. For 
the ten years intervening between the rendering of the 
Award and the signing of this treaty, Costa Rica persis- 
tently and invariably maintained that the Loubet Award 
was defective for reasons which would impair its validity 
and that it could not be accepted unless, as proposed by 
Minister Delcasse on behalf of President Loubet, the in- 
terested Governments in a spirit of conciliation and good 
understanding could agree upon a mutually acceptable 
interpretation of the meaning of the uncertain and general 
indications of the Award. ^ 

The United States Government was drawn into the 
controversy in its early stages to protest against the refusal 

^Documents Annexed to the Argument of Costa Rica, Docs. Nos. 427, 435, 
443, 445, 446, 448, 449. 



X 

of Costa Rica to recognize the title to extensive tracts of 
land on the north side of the Sixaola, which certain United 
States citizens claimed under grants from Colombia and 
Panama. Subsequently the United States Government' 
officially recognized that Costa Rica had jurisdiction tO' 
the north and Panama had jurisdiction to the south of the 
de facto line which was formed by the Sixaola-Yorquin 
rivers pending the settlement of the controversy ; but at 
the same time the United States urged arbitration as 
' ' apparently the only manner of bringing about the settle- 
ment of a controversy the continuance of which bore so 
heavily on American interests."^ 

Negotiations for arbitration were undertaken, but no 
progress was made owing to the inability of the two 
Parties to agree on the question to be submitted. Panama 
insisted on the acceptance of the Loubet Award as a pre- 
liminary to arbitration which she wished to limit to a mere 
interpretation in a verbal sense of that Award. Costa 
Rica on the other hand insisted that the question of 
whether or not the Loubet Award was free from defects 
impairing its legal force must first be determined, and that 
the whole boundary question should be reexamined on its 
merits. In the deadlock thus produced the United States 
in response to the desire of both Parties that it should lend 
its good offices in bringing about arbitration, undertook 
the part of mediator/ A communication" was thereupon 
sent by the Secretary of State to the Government of 
Panama making it clear that — 

"there was no intention to limit the boundary issue 
between Costa Rica and Panama to the mere inter- 
pretation of the Loubet Award; that the United 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Docs. Nos. 
432, 433, 434, 435, 454, 455- 
Ubid., Doc. No. 468. 



XI 

States Government thinks, and has said, and now 
repeats that the crucial matter to be submitted to 
arbitration is the respective contentions of the two 
RepubHcs, as to the true boundary Hne." 

In this communication surprise was expressed by the 
Secretary of State that, in view of all the facts, the powers 
of the Special Minister of Panama, then in Washington 
on that business, were not full powers but were "restricted 
to the negotiation of a protocol founded upon the strict 
acceptance first and above all by both countries of the 
lyoubet Award." ^ 

It was further stated in this communication that these 
powers "are not adequate to the task in hand and are not 
equivalent to the unrestricted powers of the Minister of 
Costa Rica, and therefore should be amplified by telegraph 
in order to secure progress in the negotiations." The 
Secretary of State added: 

' ' this Government further feels that its own attitude, 
assumed before the Special Minister of Panama was 
accredited, shows that it believed full powers were 
needed and were confidently awaited in order to settle 
the real and broad question as to the true permanent 
boundary, and that the unavailing negotiations with 
Costa Rica for nearly ten years last past has made it 
clear beyond peradventure that this long standing 
controversy cannot be settled by insisting on a mere 
interpretation of the Loubet Award. "^ 

The form of the question finally adopted was understood 
by Costa Rica to require the Arbitrator to pass upon the 
real and broad question as to the true boundary which the 
Secretary of State, as an impartial mediator, had an- 
nounced was the question to be arbitrated, and the record 
shows that prior to the adoption of the treaty, the final 

^Documents Annexed to the Arguments of Costa Rica, vol. 2, Doc. 468, 



XII 

form of the question submitted to arbitration was favor- 
ably recommended to both Parties by the Department of 
^tate.' 

The willingness of the United States to recommend the 
adoption of this question in its present form is in itself 
sufficient to show that the United States understood the 
meaning of the question exactly as it was understood by 
Costa Rica. 

It would have been to the advantage of the United 
States to have the scope of this arbitration limited to a 
mere verbal interpretation of the Loubet Award without 
going into the merits of the boundary controversy, in order 
to avoid reopening the broader question, because, by 
reason of treaty arrangements between the United States 
and Panama, it would be to the advantage of the United 
States to have all the territory in dispute on the Atlantic 
coast held by Panama rather than Costa Rica.^ 

It is inconceivable, therefore, that the United States 
Government, acting the part of a friendly mediator, as is 
recited in the arbitration treaty, could have recommended 
to Costa Rica the acceptance of this question in its present 
form, if it had been understood by the United States as 
limiting the controversy in any way which would be to the 
advantage of the United States, and to the disadvantage 
of Costa Rica. 

In view of these considerations Costa Rica contends, as 
an inevitable conclusion, that under the terms of sub- 
mission, the merits of the controversy which resulted in 
the Loubet Award must be examined into as the basis for 
a correct decision of the question now submitted to 
arbitration. 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. 472. 

^Ibid., pp. 164-165; p. 474; footnote; Treaty between United States and 
Panama, 1903, Articles I and XXV, Malloy's Treaties, Conventions, etc., 
between United States and other -Powers, 1776-1909, Vol. 2, p. 1349. 



XIII 

II. 

UNDER THE TERMS OF SUBMISSION THE PRESENT ARBU 
TRATOR IS AT LIBERTY TO INTERPRET THE LOUBET 
AWARD IN ANY WAY NECESSARY TO FIX THE BOUNDARY 
IN ACCORDANCE WITH THE MERITS OF THE ORIGINAL 
CONTROVERSY SUBMITTED TO PRESIDENT LOUBET, 
DISREGARDING ANY COMPLICATIONS DUE TO IMPER= 
FECTIONS IN THAT AWARD. 



It has already been established that the terms of sub- 
mission require the present Arbitrator to examine into the 
merits of the underlying question of the true boundary 
between Costa Rica and Panama in order to determine the 
correct interpretation and true intention of the I^oubet 
Award, and it necessarily follows that having determined 
the merits of that question the boundary must be laid down 
in accordance therewith. 

It also follows with equal certainty that in doing this 
any complications or difficulties arising out of defects in 
the Loubet Award line in conflict with the true line, must 
be disregarded by the Arbitrator; otherwise there would 
be no object in examining into the basic question." 

It cannot be assumed that President Loubet had any 
intention of deciding the boundary controversy otherwise 
than according to its merits, and when the merits of that 
controversy have been determined, the intention to lay 
down the line in accordance therewith must be attributed 
to President Loubet, and his Award under the terms of 
submission must be so interpreted. 

President Loubet himself recognized almost immediately 
after the Award was rendered that it required revision, 
and Minister Delcasse, on his behalf, undertook to correct 
some of its errors and uncertainties by giving it an inter- 
pretation which, although contrary to its terms, was in 



XIV 

accordance with the facts, and therefore with what was 
assumed to have been in the mind of the Arbitrator. 

One of these corrections was made by Minister Delcasse 
in response to a communication from the Minister of 
Nicaragua at Paris, objecting that by the terms of the 
Award the Islands of Mangle Chico and Mangle Grande 
were awarded to Colombia regardless of Nicaraguan owner- 
ship of them, which had never been questioned and was 
expressly excluded from the consideration of the Arbitrator 
by the arbitration agreement. In reply to this objection^ 
Minister Delcasse undertook to revise the Award as 
follows : 

' ' Taking account of the agreement arrived at upon 
this point between the two Republics in the cause, as 
well as of the general rules of the Law of Nations, the 
Arbitrator only had in mind, in referring by name to 
the islands mentioned in his decision, to establish 
that the territory of the said islands, mentioned in 
the treaty concluded March 30, 1865, between the 
Republics of Coast Rica and Colombia is not included 
in the dominion of Costa Rica. 

"Under these conditions, the rights which Nica- 
ragua can have to the possession of these islands 
remain entirely as in the past, the Arbitrator not 
undertaking in any way to determine a question 
which was not before him."^ 

Here, it will be observed, the express statement of the 
Award that these islands "shall belong to the United 
States of Colombia"^ is given the meaning, by interpre- 
tation, that they ' ' are not included in the dominion of Costa 
Rica."^ 

Again, when the Costa Rican Minister, soon after the 
Award was rendered, pointed out to Minister Delcasse* 

'Documents Annexed to the Argument of Costa Rica, vol. 2, p. 541- 
^Ibid., vol. 2, p. 533. 
^Ibid., vol. 2, Doc. 420. 



XV 

that the Award required reformation by interpretation in 
order to prevent carrying the hne into undisputed territory 
of Costa Rica which "would be a positive violation of the 
terms of the compromise, which limits the attributions of 
the Arbiter, and of the principles of International Law,"^ 
Minister Delcasse replied on behalf of President Loubet as 
follows : 

"I have the honor to inform you that for lack of 
precise geographical data, the Arbitrator has not been 
able to fix the frontier except by means of general 
indications; I deem, therefore, that it would be in- 
convenient to trace them upon a map. But there is 
no doubt, as you have observed, that in conformity 
with the terms of Articles 2 and 3 of the Convention 
of Paris of January 20, 1886, this frontier line must be 
traced within the limits of the territory in dispute, 
as they are found to be from the text of said Articles. 

"It is according to these principles that the Re- 
publics of Colombia and Costa Rica will have to 
proceed to the material determination of their fron- 
tiers, and the Arbitrator relies, in this particular, upon 
the spirit of conciliation and good understanding 
which has up to this time inspired the two interested 
governments."^ 

In both of these cases Minister Delcasse' s solution was 
the same — reformation by interpretation. 

In the first instance he himself undertook to correct the 
defects pointed out by the Nicaraguan Minister by giving 
the Award an interpretation in accordance with what he 
assumed President Loubet had in mind, in contradiction 
to what he actually said in the Award. 

In the second instance, in order to meet the objection of 
the Costa Rican Minister that the Award line violated 
the terms of submission, and also the principles of inter- 

iDocuments Annexed to the Argument of Costa Rica, vol. 2, p. 543. 



XVI 

national law, he in effect called upon the parties themselves 
to correct any defects in the Award by agreeing upon an 
interpretation, and at the same time he opened the way for 
them to give the Award any meaning which they could 
agree upon. In other words, he pointed out that owing 
to the lack of precise geographical data President Loubet 
had been unable to fix the frontier except by means of 
general indications — so general indeed, that ' ' it would be 
inconvenient to trace them upon a map," and that the 
Arbitrator had left it for the parties themselves to proceed 
to the material determination of their frontier, relying 
upon the spirit of conciliation and good understanding 
which had hitherto inspired them. 

The present Arbitrator, therefore, will find in what has 
already been done by President Loubet and Minister 
Delcasse on his behalf, precedents of great authority for 
reforming the Loubet Award by interpretation in accord- 
ance with the merits of the boundary controversy, rather 
than by mere verbal interpretation of the language of the 
Aw ard, and that this was what was intended by the terms 
of submission in the present arbitration has already been 
shown in reviewing the negotiations resulting in this treaty. 

Diplomatic usage, as well as international courtesy and 
consideration, required that the question submitted for 
decision should as a matter of form call for the interpre- 
tation rather than the reformation and correction of the 
Award of the president of a sister republic who, at the 
invitation of the parties, had undertaken the arduous duty 
of arbitrating their dispute. Recognizing, however, as 
the former Arbitrator himself had recognized, that the 
mere interpretation in a verbal sense would not meet the 
difficulties presented, the scope of the arbitration was 
enlarged by permitting the intention attributable to the 



XVII 

former Arbitrator to enter into the interpretation of the 
Award, in accordance with the precedents he had himself 
estabhshed, and by requiring the present Arbitrator in 
deciding this question to take into account all the facts, 
circumstances and considerations which may have a bear- 
ing on the case, thus insuring that the Award should be 
reformed, and the boundary fixed in accordance with the 
merits of the controversy. 



III. 



THE AWARD LINE IS DEFECTIVE AND REQUIRES REFORMA- 
TION BECAUSE OF ITS UNCERTAINTY AND AMBIGUITY, 
BECAUSE IT INVADES UNDISPUTED TERRITORY OF COSTA 
RICA, AND BECAUSE IT IS NOT JUSTIFIED BY THE OTHER 
FACTS, CIRCUMSTANCES AND CONSIDERATIONS WHICH 
ARE REQUIRED TO BE TAKEN INTO ACCOUNT IN DECID= 
INQ THE QUESTION SUBMITTED. 

Costa Rica contends that a line laid down in accordance 
with the general indications of the Loubet Award, as 
interpreted by Panama, would not be in accordance with 
the correct interpretation and true intention of that Award 
in view of all the facts, circumstances and considerations 
having a bearing upon the case, which the Arbitrator 
must take into account in deciding the question submitted. 

Among these facts, circumstances and considerations 
which must be taken into account are the uncertainty and 
ambiguity of the Award, its disregard of the merits of the 
controversy submitted to President Loubet, its disregard 
of the limitations imposed upon the jurisdiction of the 
Arbitrator, the inequality of treatment to which Costa 
Rica was subjected during the French arbitration, and the 
non-existence of certain facts, the assumed existence of 
which had a controlling influence upon the Arbitrator. 



XVIII 

Uncertainty and Ambiguity of the Award. 

As stated by the Secretary of State of the United States 
in the negotiations leading up to the present arbitration, 
throughout the ten years which had then elapsed since the 
lyoubet Award, "Costa Rica has insisted that the Loubet 
Award was void in part at least on the ground of ultra 
petita or impaired or vitiated by ambiguity and uncer- 
tainty, and that this contention was not in violation of 
the original agreement of submission which contemplated 
an award within the defined limit of the claims and not 
technically void for uncertainty."^ 

This objection of ambiguity and uncertainty is fully 
discussed in the Case of Costa Rica, and, as therein shown, 
arises from the failure of the Arbitrator to fix the frontier 
except by means of general indications owing to the lack of 
precise geographical data, and the impossibility of accu- 
rately tracing these general indications upon a map, and 
also because these general indications refer to assumed 
geographical or topographical conditions which do not 
exist. The contention of Costa Rica in respect of these 
objections, so far as they apply west of the Sixaola 
River, has been confirmed by the geographical and 
topographical data collected by the Commission of Engi- 
neers, as appears from the extensive exposition and 
analysis of their report presented in the Case of Costa 
Rica.^ No facts or arguments have been brought forward 
in the Case of Panama to disturb these contentions, as 
is shown in the Counter-case of Costa Rica, which con- 
tains a full discussion of the position of Panama.^ 

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 692. 
^Argument of Costa Rica, pp. 281-329. 
^Counter-case of Costa Rica, pp. 141-190; 203-263. 



XIX 

It also appears from the discussion of these objections 
in the Case and Counter-case of Costa Rica, that these 
defects in the Award, as well as other deficiencies therein 
which will be mentioned later, were undoubtedly due to 
misinformation on the part of President lyoubet about the 
geographical conditions both as to the topography west- 
ward of the Sixaola river and as to the location of that 
river and the course of the Tarire and Yorquin rivers, and 
their relation to the Sixaola river. ^ 

The suggestion made by Minister Delcasse on President 
Loubet's behalf, as soon as the defects of the Award were 
called to his attention, that the parties, should proceed to 
the material determination of their frontier in a spirit of 
conciliation and good understanding because he had been 
unable to do more than indicate it in general terms, makes 
it evident that in preparing the Award he relied on infor- 
mation which he afterwards realized was incorrect, and 
that he perceived, in view of the incorrectness of this 
information, that the Award line proposed by him would 
have to be revised in order to carry out his real intention." 

This situation was the natural outcome of the inequality 
of treatment of which Costa Rica complained during the 
course of the arbitration, by reason of which Costa Rica 
was not informed of numerous maps and documents and 
other evidence submitted to the Arbitrator by Colombia, 
and had no opportunity of challenging the accuracy or 
correcting the inaccuracy of this evidence.^ Inasmuch as 
this evidence has not been communicated to Costa Rica, 
and none of it has been produced by Panama in the present 
arbitration, there is a strong presumption that on further 

^Argument of Costa Rica, pp. 362-376, 428-450. 

'^Ihid., p. 435. 

^Argument of Costa Rica, pp. 152-159; 419-423; Documents Annexed 
to the Argument of Costa Rica, Vol. 2, Docs. Nos. 409, 410. This counter 
case, pp. 97-103. Appendix No. i to this Counter-case. pp. 104-116. 



XX 

examination it proved to be unreliable and incorrect, and 
consequently it may fairly be presumed that it was respon- 
sible for President Loubet's mistakes. 

Indeed, so far as the maps are concerned, it is stated in 
the Case of Panama that — 

"By the maps which President Loubet had before 
him, it appeared, no doubt, that the ridge along the 
summit of which the line must run in order to attain 
this result [to award to Colombia the entire water- 
shed of the Sixaola] was visibly continuous from 
Punta Mona to the Cordillera."^ 

The supposed existence of a natural barrier, as errone- 
ously shown on these maps, unquestionably was one of 
the inducements which led President Loubet to project 
the boundary line beyond the Sixaola river, and that he 
must have been misinformed as to the identity of the 
Sixaola and the location of the Yorquin and the Tarire 
rivers is the only possible explanation of why he did not 
forsee that this projected line would invade the undisputed 
territory of Costa Rica which was beyond his jurisdiction. 
The reasons for adopting this explanation are convincingly 
set forth in the Counter-case of Costa Rica at pages 127 
et seq. 

No information about the topography westward of the 
Sixaola and Yorquin rivers was presented by Costa Rica, 
for the simple reason that Colombia had never disputed 
Costa Rica's possession of that territory and it was regarded 
cis wholly outside the scope of that arbitration. 

If the information upon which President Loubet relied 
was received from Colombia, its inaccuracy can easily be 
accounted for by the fact that Colombia was not then and 

'Argument of Panama, p. 17. 



XXI 

never had been in possession of any territory beyond the 
vSixaola-Yorquin rivers. 

It is practically certain, as stated in Costa Rica's 
Counter-case^ that the arbitrator had before him the map 
of the French Canal Company of Panama^ published in 
1 896, which shows the lands surveyed by the engineers of 
that Company and those of the Government of Colombia 
under the concessions secured by this French Company 
from that Government. These concessions covered a tract 
of 190,000 hectares called " Sixaula-Rovalo " located alon^, 
the right side of the Sixaola-Yorqum rivers, and another' 
iract of 109,200 hectares called " Catabella-San Pedro"' 
located near the Chiriqui I^agoon.^ As stated by the 
Costa Rican Minister at Washington in his note of April 
20, 1893 to the Secretary of State of the United States: 

' ' The Panama Canal Company, in virtue of a con- 
cession of 500,000 hectares of ground of the public 
domain of Colombia (article 4 of the concession of 
1878), thought fit to select nothing less than the 
territory which is the principal subject of the bound- 
ary question in order to solicit its allotment as a 
dominion and ownership [of said company] from 
Colombia. 

"The Panama Canal Company had already meas- 
ured, in the region washed by the bay of Almirante 
and by the Tagoon Chiriqui a surface of nearly 280,000 
hectares when the surveyor of said company en- 
countered a Costa Rican guard, who obliged him to 
desist from his measurements where the guard was 
stationed; but in such vast and wild solitu(des not 
only measurements of land but acts of occupation 
may be effected without in a long time coming to the 
knowledge of the legitimate sovereign."^ 

^Counter-case of Costa Rica, pp. 1 19-127. 
^Map No. I filed with Counter-Case of Costa Rica. 

^Counter-case of Costa Rica, p. 119. Documents Annexed to the Argu- 
ment of Costa Rica, vol. 2, p. 448. 

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 478. 



XXII 

The map of the French Canal Company shows the west- 
ernmost concession of that Company as bordering a river 
named therein the Sixaola-TeHre river, following approxi- 
mately the actual course of the Sixaola-Yorquin rivers, 
from which it is evident that the river called the Telire 
was mistaken for the Yorquin. 

Moreover it is further evident that in preparing this 
map the engineers of the French Company could not have 
intended the river they called Telire to be the Tarire of the 
Award, because no tributary river to the eastward of that 
river is shown on this map and they were not permitted to 
extend their surveys beyond the Yorquin river, as appears 
from the documents submitted in that connection in the 
Case of Costa Rica/ 

It is equally evident that if President Loubet had this 
map before him, which cannot be doubted, he was influ- 
enced by it because it was apparently official in character. 

The confidence with which it is asserted that this map 
was before the Arbitrator is due to the peculiar interest 
which the French Canal Company had at that time in the 
outcome of the French arbitration, as the holder of con- 
cessions from Colombia covering the vast tracts shown on 
this map along the Sixaola river, in the territory in dispute 
in this arbitration. As the situation then stood, in order 
to establish its title to these tracts covered by the con- 
cessions from Colombia, it was absolutely essential for the 
French Company that the Award should favor to the 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. Nos. 
375, 380, 386, 402. 



XXIII 

utmost Colombia's claim to all the disputed territory up 
to the Sixaola-Yorquin line, because Costa Rica had offi- 
cially notified Colombia that it would refuse to recognize 
these concessions in case of an award in favor of Costa 
Rica. This appears in the note of November i6, 1888, 
from the Minister of Foreign Affairs of Costa Rica to the 
Minister of Foreign Relations of Colombia, in which it is 
stated that — 

' ' Costa Rica will not in any way recognize, should the 
Award be favorable to it, the rights or concessions 
which might have been granted by Colombia to the 
Panama Canal Company over the whole or any part 
of the territories in litigation."^ 

This French Canal Company at the time of this arbi- 
tration was operating under the auspices of the French 
Government, and it cannot be doubted that the Colombian 
representative in that arbitration would have submitted 
as part of his evidence the official map of that Company, 
which map was calculated to show that the French Canal 
Company's interests would be benefited by an award in 
favor of Colombia. 

It also appears that the French Canal Company was 
desirous of securing additional territory to the westward 
of the Yorquin inasmuch as under their concessions from 
Colombia, they were entitled to 500,000 hectares, only 
about 280,000 of which they had located on the eastern 
side of that river, and the engineers had attempted to 
extend their surveys into the territory beyond that river, ^ 
which territory was afterwards granted to Colombia by 
the French Award, as interpreted by Panama. 

As already shown, Costa Rica objected to the entry of 
these engineers into undisputed territory,^ and they failed 

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 449. 
^Ibid., vol. 2, pp. 423, 448, 478. 



XXIV 

in their purpose of surveying the territory beyond the 
Sixaola-Yorquin rivers, which no doubt accounts for their 
failure to show on this map the location of the Tarire river, 
and also the lack of any indications of the topography or 
geography of the country beyond the Sixaola. 

It must be noted in this connection that the subsequent 
acquisition by the United States Government of the prop- 
erty of the French Canal Company does not reproduce in 
the present arbitration the situation which existed when 
the former award was made because the concessions from 
Colombia, which were then held by the French Company, 
covering a large part of the disputed territory, appear to 
have been cancelled under Article VIII of the treaty of 
1903 between the United States and Panama, which 
provides : 

"The Republic of Panama grants to the United 
States all rights which it now has or hereafter may 
acquire to the property of the New Panama Canal 
Company and the Panama Railroad Company as a 
result of the transfer of sovereignty from the Republic 
of Colombia to the Republic of Panama over the 
Isthmus of Panama and authorizes the New Panama 
Canal Company to sell and transfer to the United 
States its rights, privileges, properties and concessions 
as well as the Panama Railroad and all the shares or 
part of the shares of that company; but the public 
lands situated outside of the zone described in Article 
II of this treaty not included in the concessions to 
both said enterprises and not required in the con- 
struction or operation of the Canal shall revert to the 
Republic of Panama, except any property now owned 
by or in the possession of said companies within 
Panama or Colon of the ports or terminals thereof/ 

iMalloy's Treaties, Conventions, etc., between the United States and 
other Powers, 1 776-1 909, vol. 2, p. 1352. 



XXV 

The Merits of the- Boundary Question. 

In order to determine the merits of the boundary dis- 
pute submitted to President Loubet it is only necessary 
to apply properly the principle of uti possidetis to the 
established facts showing the extent of the actual posses- 
sion of the territory in dispute by the respective parties 
to the controversy. 

It has been shown in the Case of Costa Rica^ that 
Central America and Colombia in entering into their treaty 
of 1825' adopted as the basis for the settlement of their 
boundary the principle of uti possidetis in accordance with 
the invariable custom then prevailing in Central and South 
America. The boundary to be determined in accordance 
with that treaty was in reality the boundary between the 
former Spanish Colonies of Costa Rica and Panama; and 
inasmuch as Panama and Costa Rica remained Spanish 
Colonies until the latter part of 1821, more than ten years 
after Colombia's declaration of independence, and Panama 
did not become part of the Republic of Colombia until 
1822, it necessarily follows that the principle of uti 
possidetis to be applied for the determination of their 
boundary did not go back of conditions in 182 1. 

This was the question which they agreed to arbitrate 
in their first boundary arbitration treaty of 1880,^ and it 
was the question submitted to President Loubet under 
the supplementary treaty of 1896.'' 

In the Constitution adopted by Colombia in 1886 it 
is stated : 

' ' The divisional lines separating Colombia from the 
adjoining nations shall be definitely fixed by public 
treaties, the latter being based upon the principle 
of uti possidetis of 1810."° 

^Argument of Costa Rica, pp. 61-71. 

^Documents Annexed to the Argument of Costa Rica, Doc. No. 257, Art. 7. 

^Ibid., Doc. No. 364. 

^Ibid., Doc. No. 403. 

^Ibid., Doc. No. 371. 



XXVI 

This declaration overlooked the fact that the territory 
of Panama intervened between the frontiers of Colombia 
and Costa Rica until 1822, as above pointed out, but as 
otherwise the uti possidetis of 18 10 and of 1822 were the 
same, this mistake was immaterial. 

The evidence presented in the Case of Costa Rica shows 
that when Panama and Costa Rica were colonies of 
Spain, until 1821, their boundary on the Atlantic side of 
the isthmus, which is the only part of the boundary now 
under consideration, extended from the Kscudo de 
Veragua along the course of the Chiriqui river^ to its 
headwaters, and thence to the Main Cordillera in the 
general direction of the Chiriqui Viejo river, to the east 
of Punta Burica. 

It has also been shown that in Costa Rica's Constitution^ 
adopted in 1825, which was known to Colombia when 
their treaty of 1825 was ratified and exchanged, this bound- 
ary was described as terminating at the Bscudode Veragua,. 
and that so far as Panama is concerned, apart from Colom- 
bia, this boundary was never questioned, and also that in 
the treaty of 1841 between Panama and Costa Rica, when 
Panama had separated from New Granada, the reference 
to the "divisional line located at the Escudo de Veragua" 
was virtually a recognition of Costa Rica's contention that 
their boundary was located there.^ 

It also appears from the evidence already presented 
that until 1870 Costa Rica had always been in unin- 
terrupted and undisputed possession of all the territory 
claimed by Colombia in the French Arbitration to the 

'Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. Nos. 
259, 262, 265, 266, 271, 283 at pp. 76-77, 287, 303 at p. 203, 366 at pp. 392— 
397. PP- 402-403; Opinion of Moret and Parades. 

^Ibid., Doc. No 255. 

^Ibid., Doc. No. 277, Doc. No. 278. 



XXVII 

westward of the Changuinola river/ which up to that 
date had been the utmost Hmit of Colombia's pretensions,^ 
and that Colombia's only claim to possession of any of 
the territory in dispute eastward of that river rested on 
the temporary occupation in 1836 of the Island of Boca 
del Toro, and some subsequent spasmodic efforts to 
establish settlements at a few isolated points on the shore 
of the Bocas del Toro region.^ The record further shows 
that these acts of aggression on the part of Colombia 
were suffered by Costa Rica by reason of necessity, 
and always under protest and without any admission of 
Colombia's right or title which could be regarded as 
impairing Costa Rica's right and title to this territory 
under the principles of international law as recognized 
and adopted in the treaty of 1825 with Colombia."^ 

It further appears from the evidence in the Case^ that 
in the treaty between Costa Rica and' Colombia, which 
was negotiated in 1873, the boundary line agreed to 
extended along the Bananos river, which is to the eastward 
of the Changuinola river, thus reducing Colombia's 
previous contentions; and when that treaty failed of 
ratification, Colombia in anticipation of arbitration, which 
was then recognized as inevitable, proceeded to establish 
a small settlement between the Changuinola and the 
Sixaola rivers, for the purpose of extending the scope of 
the arbitration, and strengthening as far as possible her 

^Argument of Costa Rica, pp. 76, 385-392; Documents Annexed to the 
Argument of Costa Rica, vol. 2, Doc. Nos. 269, 324. 

^Argument of Costa Rica, pp. 76-81, 436-447; Documents Annexed to 
the Argument of Costa Rica, vol. 2, Docs. Nos. 272, 294, 295, 298, at p. 133; 
Counter case of Costa Rica, pp. 265-276. 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. Nos. 
275; 283 at p. 72 et seq^.; 286 at pp. 84-85; 287; 298 at pp. 141-143, 147; 
300 at p. 153; 478. 

^Argument of Costa Rica, pp. 16-21, 72-112; Documents Annexed to the 
Argument of Costa Rica, vol. 2, Docs. Nos. 253; 273; 295; 296; 302 at p. 163, 
P- 167; 303 at pp. 189-190; 317. 

^Argument of Costa Rica, p. 1 1 1 ; Documents Annexed to the Argument 
of Costa Rica, vol. 2, Doc. No. 334. 



XXVIII 

t?laim to the possession of that territory.^ This was the 
only other important change in the situation between 
.1870 and 1880 when the first arbitration treaty was made. 

Throughout the who]e period covered by these encroach- 
ments by Colombia, upon the territory of the former 
province of Costa Rica, no part of the vast regions between 
the Kscudo de Veragua and the Sixaola river was in the 
actual possession of Colombia with the exception of a 
few unimportant and isolated settlements, most of which 
were only of a tem.porary character located on the islands 
or on the shore along the coast." The situation above 
outlined as to the possession by Colombia and Costa Rica 
respectively of the territory in ciispute between them, 
remained unchanged from 1880 until the settlement of 
that dispute was submitted to the arbitration of the 
President of the French Republic in 1897, under their 
treaty of 1896.'^ 

During the period covered b}' these developments the 
treaties of 1856'^ and 1865^^ also were negotiated as well as 
the treaty of 1873,'^ but none of these treaties were ratified. 
By the modifications introduced in the first one by 
Colombia, she attempted to fix the boundary at 
the Sixaola- Yorquin rivers, and Costa Rica yielding 
to the pressure of the misfortunes of war and the plague 
was prepared to assent to a boundary at the Changuinola 
river, but by the later treaty of 1865 when normal con- 
ditions had been reestablished, the boundary agreed upon 

1 Argument of Costa Rica, pp. 107-111; Documents Annexed to the 
Argument of Costa Rica, vol. 2, Doc. Nos. 375 at p. 424; 380 at p. 452. 

^Argument of Costa Rica, pp. 385-394, pp. 407-417, 459-507. 

^Argument of Costa Rica, pp. 394-398; Documents Annexed to the 
Argument of Costa Rica, Annex I, vol. 3, pp. 133-448; vol. 4, Doc. Nos. 
580, 581, 582, 583- 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. No. 

307- 

^Ibid., Doc. No. 323. 
^Ibid., Doc. No. 334. 



XXIX 

was the Canaveral river, which closely approximated 
Costa Rica's original colonial boundary along the Chiriqui 
river to the Escudo de Veragua.^ 

These facts showing the extent and character of the 
possession exercised by Costa Rica and Colombia, respec- 
tively, over the territory in dispute from the time the 
dispute originated down to the time of the French Arbi- 
tration, are uncontradicted and unquestioned, and were 
all in evidence in that arbitration. 

These being the facts of the case as to possession, and 
the law to be applied, as has already been shown, being 
the principle of uti possidetis in 1821, it is obvious that 
neither the facts nor the law furnish any justification for 
carrying the boundary to the westward of the Sixaola 
river, and that rightly it should not have been carried 
€ven so far to the westward as the Changuinola. The 
opinion of the learned Spanish jurists Don Segismundo 
Moret y Prendergast and Don Vicente Santamaria de 
Paredes, which forms part of the Case of Costa Rica, 
demonstrates that the Chiriqui, rather than the Chan- 
guinola would have been fixed as the boundary if Colombia 
had not refused to go on with the arbitration before the 
King of Spain^ under the supplemental arbitration treaty 
of 1886^; in the preamble of which it was recited that it 
was to the interests of both parties to continue the arbi- 
tration before the Spanish Government "not only because 
the greater part of the original documents for deciding 
with certainty and full knowledge of the matter the pend- 
ing question of boundaries are to be found in the archives 
of Spain, but also because there are to be fo und there a 

^Argument of Costa Rica, pp. 83-107. 

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. Nos. 
3^3, 385, 396, at p. 496, Doc. No .401. 
^Ibid., Doc. No. 369. 



XXX 

sufficient number of persons especially devoted to investi- 
gations concerning America, whose opinion and counsel 
will efficiently contribute to the adjustment of the award 
as far as possible to the truth and to justice." 

It must be concluded, therefore, that the line proposed 
in the Loubet Award lying to the westward of the Sixaola 
river in territory which had been continuously in the 
undisputed possession of Costa Rica from the beginning 
of its colonial history was based upon a misunderstanding 
of the facts, or a misapprehension of the law to be applied, 
for it is otherwise inexplicable. It cannot be explained 
on the theory that it was the intention of the award to 
give effect to the Royal order of 1803 under which 
Colombia asserted a claim to the Mosquito Coast for 
that would imply a total disregard of the controlling 
principle of uti possidetis in view of the fact that Colombia 
never had actual or even constructive possession of any 
territory beyond the Sixaola- Yorquin rivers. It is true 
that Colombia in anticipation of this difficulty sought to 
change the principle of uti possidetis by adding the words 
"de jure" in the hope of giving a mere claim of right to 
possession the same value as a claim to ownership based 
upon actual possession. But whatever may be the value 
of this new principle of uti possidetis de jure, and even if 
it were permissible to apply it in that arbitration, it called 
for proof that the Royal Order of 1803 furnished a valid 
basis for a claim by Colombia of the right to possession 
of territory heM in actual possession by Costa Rica. 
That this Royal Order had no value as a basis for any 
such claim has been abundantly proved by the arguments 
and evidence presented in the Case^ and Counter-case" 
of Costa Rica, wherein it is shown that it must be dis- 

lArgum^nt of Costa Rica, pp. 508-623. 
^Counter-case of Costa Rica, pp. 54-85. 



XXXI 

regarded for many reasons, the most important of which 
are the following: 

1. This order was issued for a military and not 
for a political purpose; and, therefore, was not 
intended to change political divisions of territory. 

2. A royal order could not change political divisions 
of provinces, for that could only be done by a royal 
cedula in distinction from a royal order, one being 
the act of the King himself,* and the other merel}^ of 
his minister. 

3. The order of 1803 never became operative, and 
in fact was superseded and annulled by subsequent 
orders. 

4. Being a revocable order it in no event could be 
regarded as having any effect after 1810, when Colom- 
bia declared its independence of Spain, and the 
Mosquito Coast remained under Spanish jurisdiction. 

5. The Mosquito Coast proper never extended 
eastward further than Punta Gorda, which is more 
than ten leagues to the westward of the San Juan 
river, and as the order in terms applied only to a 
part of the existing Mosquito Coast, it could not be 
construed as extending that coast beyond its recog- 
nized limits. 

6. The Mosquito Coast consisted only of a narrow 
strip of the shore or littoral along the extreme edge 
of the Coast, and, therefore, even admitting arguenda 
that it originally extended as far to the eastward 
as the Sixaola river, as claimed by Colombia, it 
would furnish no justification for carrying the boun- 
dary to the westward of the Sixaola river back from 
the coast and into the interior of the Province of 
Talamanca. 

That the Royal order of 1803 was not relied upon in 
the Toubet Award as the justification for carrying the 
boundary beyond the Sixaola river, is evident from the 
rejection in that Award of Colombia's claim, under that 



XXXII 

Order, of title to the Atlantic littoral of Costa Rica as 
part of the Mosquito Coast/ 

The merits of this question may also be determined by 
taking into consideration, in connection with the facts 
above set forth, Costa Rica's title by prescription, which 
was invoked in the Case of Costa Rica,^and confirms in all 
respects the conclusions reached under the application of 
the principle of uti possidetis. 

As stated in the Case of Costa Rica, the situation and 
conditions above shown demonstrate that the title asserted 
by Costa Rica to all the territory under consideration 
to the west of the Changuinola river was valid, and should 
be sustained not only on the principle of uti possidetis 
of 1 82 1, but also on the ground of undisturbed and un- 
challenged possession from time immemorial up to 1821, 
when that principle was adopted in recognition of such 
possession, and also by reason of the uninterrupted con- 
tinuance of such possession since 1821 down to the present 
time, there never having been any adverse holding of any 
part of the above-mentioned territory until a very few 
years before arbitration was agreed upon under the treaty 
of 1880, since which time, and pending arbitration, the 
occupation of a portion of that territory must be regarded 
as without prejudice to the rights of Costa Rica, which 
had previously been established." 

Extent of the Former Arbitrator' s Jurisdiction. 
Not only was the former Arbitrator required under the 
terms of submission, as has already been shown, to deter- 
mine the location of the boundary in accordance with the 
principle of uti possidetis in 1821, but his jurisdiction was 

^Argument of Costa Rica, p. 262; Synopsis, p. xxiv. 
-Ibid., p. 453- 



XXXIII 

further limited by article 3 of the treaty of 1886,^ which 
required him to confine the boundary to be fixed by the 
award within the territory then actually in dispute 
between the two parties. 

It is admitted in the Case of Panama that — 

"if any part of the line fixed by President Loubet did, 
in fact, lie outside the limits fixed by the convention 
of 1886, that part would require modification and it 
would be necessary for the present Arbitrator to 
substitute for it such line as he should determine to 
be 'most in accordance with' what he should find to 
be the 'true intention, of the Award."" 

It has been necessary, therefore, to consider what territory 
was actually in dispute within the meaning of article 3 of 
the treaty of 1886. 

On this point the position taken in Panama's Case is 
as follows: 

"No claim was made by either party as to interior 
lines and nothing in the treaty prescribes any rule 
upon the subject. So long as the terminal points 
upon the two coasts were within those stated, he 
was at complete liberty, in the interior, to connect 
them by a line running in whatever course he should 
think proper."^ 

But it must be noted that although the course of the 
line claimed by Colombia between the two extreme points 
named by Colombia, was not described in that treaty, the 
limiting clause nevertheless made it necessary to confine 
the boundary to territory actually in dispute between 
the two Governments when that treaty was made. 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, Doc. 
No. 369. 

^Argument of Panama, p. 10. 
^Ibid, p. 9. 



XXXIV 

It is pointed, out in the case of Costa Rica (Synopsis xx) 
that in considering this question of disputed territory for 
the purpose of determining the hmitation imposed thereby 
on the scope of the award, it must be remembered that the 
question relates to two entirely different sections of non- 
contiguous territories, each having a distinctly different 
historical and legal status. 

One of these sections consisted of a narrow strip of the 
shore or littoral along the Atlantic, known as the Mos- 
quito Coast, and the other section consisted of a strip 
of territory extending across the isthmus from the Atlantic 
to the Pacific.^ 

So far as this latter section of territory is concerned, 
the evidence and arguments presented in the Case and 
Counter- Case of Costa Rica have demonstrated that in 1880 
Colombia' s claim to the interior territory back from the coast 
did not extend beyond the course of the Sixaola-Yorquin 
Rivers,^ and that between 1880 and 1886, this claim was 
in no way extended, and thereafter remained unchanged 
until the so-called Silvela line was proposed in the course 
of the French arbitration; and obviously no claim made 
subsequent-irLi 886 could operate to extend the limits of the 
territory actually in dispute in 1886. It should be noted 
in this connection, however, as has already been pointed 
out in the Case of Costa Rica that Colombia's proposal of 
this Silvela line was in effect an admission that a part of 
the territory which Panama now claims as granted to it 
under the Loubet award, was outside of the territory 
in dispute in 1886.^ 

^Argument of Costa Rica, pp. 258-262; Synopsis, p. xx. 
-Argument of Costa Rica, pp. 241-248; Synopsis, p. xxxin, Counter- 
case, pp. 22, 42-50. 

^Argument of Costa Rica, pp. 161-164, 376; Synopsis, p. xxxiv. 



XXXV 

It is evident, therefore, in view of all the facts already 
established that it never has been and cannot be ques- 
tioned that, apart from Colombia's claim to the Mosquito 
Coast, the territory in dispute in 1886 did not extend to 
the westward of the Sixaola-Yorquin Rivers and that a 
boundary line extending beyond that territory is wholly 
without justification unless some justification for it can 
be found in the Mosquito Coast claim, which now remains 
to be considered. 

Attention has already been called to the fact that 
Colombia's contention that the Mosquito Coast extended 
along the Atlantic littoral of Costa Rica was rejected by 
President Loubet,^ and it has likewise been shown that the 
claim asserted by Colombia in the French Arbitration 
of a right to the possession of the Atlantic littoral of 
Costa Rica depended wholly upon the Royal Order of 
1803, which Order has been found worthless as a basis 
of title even as to the Mosquito Coast proper. 

The failure of Colombia's contention in regard to the 
Mosquito Coast destroys any possibility of finding therein 
a justification for carrying the line to the westward of 
the Sixaola River, even on the extreme edge of the coast, 
and in this connection it should also be observed that even 
if Colombia's claim to the Mosquito Coast had not failed, 
it could by no possibility have justified President Loubet in 
carrying the boundary into the interior to the westward of 
the Sixaola River, because the Mosquito Coast did not, 
and Colombia never claimed that it did, extend inland 
back of the narrow strip of shore described as the littoral.^ 

Shortly before the arbitration treaty of December 25, 
1880, between Costa Rica and Colombia was entered into, 

^Argument of Costa Rica, p. 262; Synopsis, p. xxiv. 

-Documents Annexed to the Argument of Costa Rica, Vol. 2, Docs. 
Nos. 283, 303 at pp. 183-184. 



XXXVI 

there was a renewal of interest on the part of Colombia in 
the Mosquito Coast claim, on account of the anticipated 
construction of an interoceanic canal along the Nicaraguan 
route through the San Juan River, the prospect of which 
had once before been responsible for exaggerated preten- 
tions on the part of Colombia.^ On June 28, 1880, the 
Colombian Secretary of Foreign Relations wrote to the 
Nicaraguan Minister at Managua that — 

" The proposed enterprise of the excavation of a canal 
between the Atlantic and Pacific Oceans, at the Isth- 
mus of Panama, or at some other point in Central 
America, has led to some recent investigations, pub- 
lished in the press, concerning the rights of this 
Republic in the territorial zone which extends on 
the Atlantic side between the River Doraces or Cule- 
bras and the Cape Gracias a Dios."^ 

And he added that Colombia was desirous that the 
boundary question referred to should be settled by diplom- 
acy, or failing that by arbitration. 

In reply to this note the Minister of Foreign Relations 
of Nicaragua wrote to the Minister of Foreign Relations 
of Colombia on September 16, 1880, stating that — 

' ' As regards the question to which Your Excellency 
refers, my Government has not been able to give to 
it the importance which at first sight its gravity and 
possible serious character would have, because it 
never has been presented by that of Colombia to the 
consideration of that of Nicaragua, which does not 
know in any official way the bases upon which any 
claim of that character could be supported, if it were 
disposed to formally submit it. 

iDocuments Annexed to the Argument of Costa Rica, Vol. 2, Doc. No. 
283 at pp. 72, 76. 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, p. 397 ; Doc» 
No. 366 at pp. 392-398. 



XXXVII 

The rights of Nicaragua over the territory which 
extends on the Atlantic Coast from Cape Gracias a 
Dios to its frontier with the Repubhc of Costa Rica, 
have been recognized from a far distant epoch by 
all the nations with whom it has cultivated friendly 
relations; its extended possession of that littoral, 
never disputed by any one, and the exercise of juris- 
dictional acts without opposition by any party who 
might be supposed' to have a better right, constitute a 
title of such clear and unquestionable character that 
my Government cailnot admit the possibility of it 
being put in doubt with any colour of justice."^ 

The Minister of Foreign Relations of Nicaragua trans- 
mitted a copy of this correspondence on September 21, 
1880 to the Minister of Foreign Relations of Guatemala, 
who replied on October 16, 1880, approving of the view 
expressed by the Nicaraguan Government that inasmuch 
as there was no doubt as to the rights of Nicaragua in the 
territory claimed to be in dispute, there was nothing to 
arbitrate, and he added — 

"It has been stated and many times repeated, that 
the King of Spain indicated as to the end of Central 
America the "Escudo de Veragua," on the Atlantic 
side, and the Point of "Burica" on the Pacific. 

These limits were recognized by the Sovereigns of 
the House of Austria and the Bourbons, from Philip 
II down to Fernando VII. 

For Colombia to have acquired any territorial 
property on this side of the ' ' Bscudo de Veragua, ' ' it 
is necessary for it to have a title transferring the 
dominion, since under the Law of Nations as well as 
by Civil Law property can only be acquired by 
legitimate means. 

The Government of Colombia has never submitted 
a title of that character, which changes the limits 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, p. 400. 



XXXVIII 

between the Viceroy alty of Santa Fe, and the 
Captaincy- General marked out by the Kings of 
Castile. "1 

A valuable exposition then follows from this disinter- 
ested source showing the justice of Costa Rica's contention 
that the ancient boundary between Central America and 
Colombia was located at the Kscudo de Veragua, and he 
adds — 

"This was well understood by the Governments 
of Colombia prior to the recent investigations con- 
cerning the excavation of the Canal, for neither 
General Herran, nor Valenzuela, nor Pradilla, nor 
Correoso, who at various times have celebrated 
boundary treaties between New Granada or the 
United States of Colombia and Central America ever 
made such extreme claims."^ 

In connection with this correspondence, the note of 
April 20, 1880,^ from the Minister of Foreign Relations of 
Colombia to the Minister of Foreign Relations of Costa 
Rica, should also be read, for in that note the same ques- 
tion is tentatively raised with Costa Rica by the allegation 
that "by virtue of the uti possidetis of 18 10, and firmly 
based upon authentic and irrefutable documents the 
boundaries of Colombia extend on that [Atlantic] side as 
far as Cape Gracias a Dios, embracing all of the Mosquito 
Coast on the Atlantic." 

That the Mosquito Coast did not extend below the 
Costa Rican-Nicaraguan boundary was well understood 
at that time,^ and that Colombia never having been in 

^Documents Annexed to the Argument of Costa Rica, Vo . 2, p. 402. 

''■Ibid., p. 403; Doc. No. 366. 

^Ibid., Doc. No. 352. 

*Ibid., Docs. Nos. 283, 298, 308, 378. 



XXXIX • 

actual possession of that Coast could not base a claim to 
it on the ground of uti possidetis of 1810 or any other year 
was also well known ; and it was also well understood at the 
time the treaty of 1880 was entered into, that Colombia's 
only interest in this claim to the Mosquito Coast was due 
to the desire of Colombia to secure or at least participate 
in the control of the Atlantic terminus of the proposed 
Nicaraguan Canal, which had no relation to the coast of 
Costa Rica to the south of the San Juan River. ^ 

In the conclusions adopted by the Colombian Senate on 
July 14, 1880, in regard to the settlement of the boundary 
with Costa Rica it is significant that all reference to a title 
to the Mosquito Coast by virtue of the uti possidetis in 
1 810, was omitted, the conclusion on this point being — 

"(2) Colombia has titles which accredit its right, 
emanating from the King of Spain, to the Atlantic 
littoral embraced from the mouth of the River 
Culebras as far as Cape Gracias a Dios."^ 

This conclusion is also significant from the fact that it 
was omitted from the proclamation of the President of 
Colombia making public the other conclusions adopted at 
the same time, which had no relation to the Mosquito 
Coast, and it was not communicated to Costa Rica at the 
time the treaty of 1880 was entered into; for these reasons 
it is otherwise of no importance in the present discussion, 
and may be disregarded.^ 

The real position of Colombia with reference to the 
Atlantic littoral beyond the so-called River Culebras was 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, Docs. Nos. 
384, at p. 469; 386 at p. 475. 

''Ibid., p. 366. 

^Argument of Costa Rica, pp. 1 19-133; Documents Annexed to the Argu- 
ment of Costa Rica, Vol. 2, Doc. No. 361. 



. XL 

stated once for all in the report of Senor Madrid in 1852/ 
which was substantially the same report prepared by him 
and adopted by the Colombian Senate in 1855.^ He 
there said — 

"What the Spanish Government maintained, as 
Your Worship knows perfectly well, and what the 
geographers and navigators of America have always 
understood as the Coast of Mosquitos, is that which 
extends for more than a hundred and eighty leagues 
along the Atlantic littoral of this continent, beginning 
on the westward at Punta Castilla or Cape Honduras, 
the boundary which separates it from the bay of 
that name, latitude 16° North. From its start at 
that point, the Coast of Mosquitos continues in an 
easterly direction, forming a somewhat obtuse angle 
toward Cape Gracias a Dios, and running from that 
point in a North-South direction it terminates at 
Punta Gorda, near the most northern arm of the 
River San Juan de Nicaragua at 11° North latitude. 

This coast, made up of the old native provinces of 
Taguzgalpa and Tologalpa, in the first years following 
their discovery, made by Columbus in person, was 
included within one of the two primitive governments 
conferred upon Alonzo de Ojeda and Diego de 
Nicuesa; but as soon as the Captaincy-General of 
Guatemala was organized the whole Coast of Mos- 
quitos was placed under the immediate dependency 
of the Intendants of Comayagua or Honduras, 
although the portion of the coast which extends from 
Cape Gracias a Dios towards the South was subse- 
quently segregated from the Presidency of Guatemala 
and added, at one time to the Captaincy-General of 
the Island of Cuba, and at another to the Viceroyalty 

iDocuments Annexed to the Argument of Costa Rica, Vol. 2, Doc. 
No. 298. 

-Argument of Costa Rica, pp. 83-90, 95 : Documents Annexed to the 
Argument of Costa Rica, Vol. 2, Doc. No. 302. 



XLI 

of the New Kingdom of Granada, because it was 
easier to watch over and protect it from the maritime 
stations of Havana and Cartagena than from the 
naval station of Veracruz. 

The portion of the coast mentioned, that is to say, , 
that embraced from Cape Gracias a Dios towards the 
South, was, as has been said, directed to be added to 
the New Kingdom of Granada, in the time of the 
Viceroys, Flores and Gongora, by whose reports, which 
can be referred to in the copies that are on file in 
the library of national works, it was reincorporated 
in the Captaincy-General and Audiencia of Guate- 
mala, until by the Royal cedula of November 30, 
1803, it was definitely added anew to the Viceroyalty 
of Santa Fe, or New Granada, together with the 
Islands of San Andres, conferring the government 
of the latter upon Don Tomas O'Neylly. 

Our title to the dominion of the Coast of Mosquitos 
and of the Island of San Andres mentioned, as being 
placed quoad hoc in the stead of Spain, is founded 
upon the Royal Order cited. "^ 

Among the conclusions reached by Senor Madrid in this 
report was the following: 

"2. Our title to the dominion of the Coast of 
Mosquitos, reduced to the onerous duty which was 
imposed upon us by the Royal Order of November 
30, 1803, is worth nothing, nor is it of any utility for 
ourselves; we ought to get rid of it, in such a way 
that it may not make us troubles of another kind."^ 

He further added^ — 

"But there is still more, and that is that if on the one 
hand the task of recovering the Coast of Mosquitos 
is greater than our strength, on the other hand the 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, pp. 109-1 12. 
''Ibid., p. 125. 



XLII 

title that we have to the dominion of that territory is 
of such an anomalous and indefinite nature, that strictly 
it would be reduced to the duty of affording it the mari- 
time protection it might need for its coast guard against 
outside aggressions. It appears very certain that 
in view of all the circumstances of the case this 
appears to have been the intention with which the 
Spanish Government issued the Cedula of 1 803 ; since 
by it there was not then added to New Granada any 
integral province or territory, but simply a portion of 

' the Coast of Mosquitos; and by coasts cannot be under- 
stood the districts of the interior country, nor even the 
littoral establishments of Main, or Salt-Creek, San 
Juan de Nicaragua, or Greytown and Laguna de 
Perlas or Bluefields, which always were, as they con- 

■ tinued after the issue of that order, exclusively dependent 
upon Central America. 

Under this interpretation, which seems to be the 
only one that harmonizes well with that document, 
the doininion we have derived from Spain over the 
said territory would be left reduced to the islands, 
which undoubtedly are embraced under the designa- 
tion of 'coasts,' and to an extension of beach, 
littoral or shore of the sea, exceedingly difficult to 
mark out and of which we have absolutely no need. 
We ought, therefore, to make haste to cede it to 
the States of Central America in exchange for securing 
in the interior of the Isthmus, taking advantage for 
that purpose of any favorable opportunity, a frontier 
demarcation which would avoid all reason for doubt or 
dispute in future, or at least marking out for us the 
Coast of Mosquitos, fixing towards the north-west 
upon both oceans the boundary of our territory 
at conspicuous points and in a permanent and posi- 
tive manner, provided that this can be carried out 
without compromising any principle engaging our 
security and without diminishing directly or indirectly 
our right to the other territories which belong to us."^ 

'Documents Annexed to the Argument of Costa Rica, Vol. 2, pp. 126-127. 



XLIII 

It was soon after the adoption of this report that WilHam 
Walker and his band of adventurers entered upon the 
conquest of Nicaragua, and in the struggle which ensued, 
involving Costa Rica as well as Nicaragua, New Granada 
distinctly recognized the territorial sovereignty of Nica- 
ragua over the Mosquito Coast, which was jeopardized in 
that conflict ; thus in effect denying for itself any territorial 
rights in that coast, all of which is fully set forth in the 
Counter-case of Costa Rica.^ 

Notwithstanding the fact that before the supplementary 
arbitration treaty of 1886 was entered into, the Panama 
route had been selected for the interoceanic canal, and the 
construction of a canal there was already under way, 
Colombia still anticipating that a canal might be built 
along the Nicaraguan route, on account of the interest 
displayed by the United States in that route, and in order 
not to prejudice or relinquish by implication the possibility 
of establishing a claim in the future to the part of the 
Nicaraguan coast at the mouth of the Canal, so that it 
might participate in the control of a canal along that 
route, Colombia insisted upon inserting in the treaty of 
1886, the reference to Cape Gracias a Dios as the extreme 
point of the boundary claimed by it on the Atlantic. For 
the reasons already explained, the purpose and effect of 
this was well understood by Costa Rica and it stands to 
reason that it would not have been permitted, if Costa 
Rica had for a moment believed that as a result of it the 
possession of the entire Atlantic waterfront of Costa Rica, 
including the city of L-imon, with its immensely valuable 
port and the railway terminal there, and all the national 
interests both public and private along that coast, would 
be subjected to the hazard of arbitration.^ 

^Counter-case, Chapter VI, p. 277, et seq. Appendix No. 3, Annex 2. 
^Ibid., pp. 44-50, 92-94. 



XLIV 

Moreover, even if the dispute as to the Mosquito Coast 
could be regarded as relating to the Costa Rican littoral 
below the San Juan River, it was, not a boundary dispute, 
but a question of title to territory always held by Costa 
Rica as to the possession of which no question had ever 
arisen, and no formal demand for the surrender of which 
had ever been made by Colombia upon Costa Rica. In 
the treaty of 1880 it was recited in the preamble that the 
question to be arbitrated was ' ' none other than the ques- 
tion of boundaries, foreseen in articles 7 and 8 of the Con- 
vention of March 15, 1825, between Central America and 
Colombia, which has recently been the subject of various 
treaties between Costa Rica and Colombia, none of which 
were ratified." This was a totally different question from 
a dispute as to the title of one of the parties to territory 
which had always been in the unquestioned possession of 
the other. ^ 



IV. 

CORRECT INTERPRETATION AND TRUE INTENTION OF THE 
LOUBET AWARD. 



As hereinabove pointed out, the interpretation of the 
Loubet Award is controlled by the intention attributable 
to President Loubet in view of all the facts, circumstances 
and considerations having a bearing on the case, which 
the present Arbitrator is required to take into account. 

The purpose of the foregoing discussion has been to 
show that the award line is defective, and requires re- 
formation because of its uncertainty and ambiguity, 

^Argument of Costa Rica, pp. 133- 141; Counter-case of Costa Rica, 
pp. 22-42. 



XLV 

because it is not in accordance with the merits of the 
boundary question submitted to President Loubet, 
because it rests upon a misunderstanding of the facts and 
the law to be appHed and because it extends through 
territory which was not within the scope of the former 
arbitration, and otherwise exceeds the jurisdiction of the 
former Arbitrator. 

The line of the award being objectionable, and impossi- 
ble for these reasons, it therefore becomes necessary to 
consider what intent, under these circumstances should 
be attributed to the Loubet Award in order to determine 
where the line should be fixed in the present arbitration. 

One of the most conspicuous features of the history of 
this controversy is that from the beginning of the dis- 
cussion, back in the days of Spanish control, down to 
the time when the question was first submitted to arbitra- 
tion, every one of the many boundaries which have been 
suggested and considered on the Atlantic side of the Main 
Cordillera has been a river boundary. This seems to have 
been entirely overlooked by President Loubet, and it was 
doubtless in order to excuse this oversight and give some 
appearance of regularity to the award line that Panama 
stated in its Case that — 

"In accordance with the usual practice at the present 
day, this boundary follows the summit of successive 
watersheds."^ 

The practice of the present day is of very little im- 
portance compared to the practice pointed out by the 
historical antecedents of this discussion, which was to 
adopt a river boundary as was done in the treaties of 
1856, 1865 and 1873, and as was always contemplated by 

^Argument of Panama, p. 14. 



XLVI 

both parties to the controversy in their other contentions 
as to the location of the boundary.^ 

In this connection attention is called to the very ex- 
tensive list of rivers adopted as international boundaries, 
and the discussion as to the present day practice which is 
presented in the Counter-case of Costa Rica,^ showing 
that the desire of the parties to this controversy to adopt 
a river boundary was in accordance with the almost 
universal practice. 

A most distinguished and important example of the 
custom of fixing international boundaries in Central 
America along the course of a river, is found in the award 
rendered on December 23, 1906, by the King of Spain in 
the boundary arbitration between Honduras' and Nica- 
ragua, in which it appears that although the arbitrator 
adopted Cape Gracias a Dios as the terminal point of 
the boundary, nevertheless instead of starting the bound- 
ary at that point, he carried it along the course of a nearby 
river for the reasons stated in the following extracts 
from that award : 

"Considering that from Cape Gracias a Dios there 
is no great cordillera beginning, which from its 
character and direction could be taken as the frontier 
between the two States, to start from that point, and 
that, on the other hand, there is presented at the same 
place, as a perfectly marked boundary, the outlet 
and course of a river as important and carrying so 
much water as that called Coco, Segovia or Wanks; 

Considering that since the course of this river, at 
least in a great part thereof, presents from its direc- 
tion and the circumstances of its flow, the most natufal 
and most precise boimdary that could be desired; 

^Argument of Costa Rica, p. 356-360. Documents Annexed to the Argu- 
ment of Costa Rica, Vol. 2, Docs. Nos. 267, 272, 298, 302, 361. 
^Counter-case, p. 226. 



XLVII 

Considering that this same river Coco, Segovia or 

Wanks, in a great part of its course, has figured and 

does figure in many maps, public documents and 

geographical descriptions, as the frontier between 

Honduras and Nicaragua; 

******* 

Considering that it is necessary to fix a point at 
which the course of this River Coco, Segovia or 
Wanks should be abandoned, before proceeding to 
the Southwest to go inland into territory recognized 
as Nicaraguan; 

Considering that the point which best unites the 
conditions required in that case, is the place where the 
said River Coco or Segovia receives, on its left bank, 
the waters of its tributary the Poteca or Bodega."^ 

The boundary fixed by that award was as follows ; 

"Starting from the mouth of the Segovia or Coco, 
the frontier line shall follow by the meandering of 
valley course (thalweg) of this river, going upstream, 
without interruption until arriving from this point, 
the said frontier line shall leave the River Segovia, 
continuing by the meanders of the said affluent 
Petaca or Bodega, and following up-stream to the 
junction with the River Guineo or Namasli. 

From this junction the divisional line shall take the 
direction that corresponds to the demarcation of the 
site of Teotecacinte, with reference to the demarca- 
tion made in 1720, to end in the Portillo de Teoteca- 
cinte, in such manner that said site shall wholly 
remain within the jurisdiction of Nicaragua."^ 

In order to meet the requirements of the situation thus 
presented and attributing to the Loubet Award the inten- 
tion to meet these requirements, it is necessary that the 
award should be so interpreted as to fix the boundary 

^Documents Annexed to the Argument of Costa Rica, Vol. 2, pp. 601-602. 



XLVIII 

along the course of a river, so far as possible, which in the 
language of the award of the King of Spain above quoted, 
is ' ' the most natural and most precise boundary that could 
be desired." 

It is also necessary in interpreting the Loubet Award 
to bear in mind that the case of Panama is devoid of any 
proof showing that Panama after separating from Colom- 
bia was entitled to stand fully in the place of Colombia 
with reference to any of the territory now in dispute, and 
it will be remembered that none of the claims made by 
Colombia to ownership of territory to the westward of the 
Kscudo de Veragua, the original boundary of Panama, 
were ever asserted on the ground that such territory was 
part of or belonged to Panama.^ It was demonstrated 
in the Case of Costa Rica^ that with respect to the terri- 
tory situated to the northwest of the Culebras River, the 
present Republic of Panama cannot invoke the title of an 
heir of Colombia for the purpose of claiming the sover- 
eignty of any of the territory held by Costa Rica. Cer- 
tainly no part of the territory to the westward of the status 
quo line of 1880, along the Sixaola-Yorquin Rivers, was in 
the possession of Colombia in 1903, or has since been in 
possession of Panama, and Panama has offered no evidence 
in this arbitration to show that the inhabitants of any 
part of the disputed territory have elected to become 
subject to the new Republic of Panama. 

In the light of these changed conditions, which have 
arisen since the Loubet Award was rendered, certainly 
no intention can be attributed to it which would have the 
effect of transferring from Costa Rica to Panama the 
possession of any territory as to which Colombia's claim 
has not been inherited by Panama. 

'Argument of Costa Rica, pp. 45-50. 
^Ibid., p. 49. 



XLIX 

The other considerations, facts and circumstances which 
must be taken into account in determining the true inten- 
tion of the Ivoubet Award have already been mentioned. 

CONCI.USION. 

Inasmuch, therefore, as it must be presumed for the 
reasons already discussed, that the true intention of the 
Loubet Award was to locate the boundary in accordance 
with the merits of the question, taking into consideration 
the facts and the law applicable thereto, and all the other 
circumstances and considerations which the present Arbi- 
trator is required to take into account in deciding this 
question, it necessarily follows that the boundary line 
contended for by Costa Rica must be presumed to be the 
line most in accordance with the correct interpretation 
and true intention of the Loubet Award, all of which is 
more fully set forth in the Counter-case of Costa Rica, 
which follows. 

ChandIvER p. Anderson, 

Counsel for Costa Rica. 



245 91 






^9^ 






























* 4^ -^ 



'•«« 












^U ^^ -#,.1 





/\ 













'^*\. c^yJJil^^ J^.^.^^*\. rP^.C^.^^o 






r> ■ *'^^ ^ ••.0" -J 




^ 



iP't: 
















-^^-^^ 



,!.'•. 







• ■•' 















^'\ 







iPtt,, 



«4o^ 



• «o 







c5°^ 



«5^ 



' • « e 



.-?»^ 



'••«' 



.0° 



** /% V 










HECKMAN 

BINDERY INC. 

^ MAY 9t 



N. MANCHESTER, 

ikirviilMH >ICQA9 




